Failing its Families

Summary

Having children was a source of great joy for Anita R., a
veterinary technician and mother of three. But it was a source of considerable
problems too.

Anita said her office manager was “upset” and
“very unhappy” about her pregnancy. Two days after Anita told her
she was pregnant, the manager cut Anita’s hours and reduced her pay by
hundreds of dollars a month. Anita’s supervisor complained about the
maternity leaves she took when working there, amounting to just three weeks off
after one baby was born and four after the other. Colleagues appeared revolted
by Anita’s attempts to pump breast milk at work, and complained about her
taking “breaks” to do so. Her employer offered no paid sick days,
no paid family leave, and just one week of vacation per year. Anita’s
husband, an arborist with no paid leave, was unable to secure any time off
after their third baby was born. “Our debt went up when I had unpaid
leave,” Anita said. “We got behind on bills, like credit card bills
and our car payment…. Food was tighter.” Anita added that she
wishes that paid leave and other work-family supports had been available to
mitigate the difficulties of being working parents. “Any bit would
definitely help,” she said. “It’s challenging working full
time, having young children, and trying to make it all work.”

Around the world,
countries have responded to the massive growth of women in the workforce over
the past century by crafting public policies to help reconcile work and family
obligations. These supports, which workers and employers in most countries have
come to accept as standard and necessary for working families, include paid
leave for new parents, flexible scheduling, breastfeeding and pumping
accommodations, paid sick days that can be used for family care, and
prohibitions on workplace discrimination based on family responsibilities. One
of the most common work-family supports, paid maternity leave, is practically
universal: academic research covering 190 countries shows that as of 2011, 178
countries guarantee paid maternity leave under national law. In nine of the 190
countries, the status of paid leave for new mothers was unclear. Just three
countries definitively offer no legal guarantee of paid maternity leave: Papua
New Guinea, Swaziland—and the United States.

This lack of paid leave under law in America is at odds with
a workforce revolution in which female participation in paid labor skyrocketed
over the past century, especially among those with young children. In the US
more than 19 million families with children now have a mother as the primary or
co-breadwinner, and 70 percent of children live in households in which all
adults are in the labor force. Married women with children under age six were
almost four times more likely to be in the paid workforce in 2008 as they were
in 1950.

Yet US law provides only the most meager supports to enable
workers to fulfill their work and family obligations, leaving the availability
of such provisions largely up to employers’ generosity. The idealized
notion is that private markets will foster such supports as employers compete
for good workers. In reality, however, huge swaths of the workforce have no
such supports, and there are enormous disparities in access.

For example, leaving decisions about whether to offer paid
family leave—including for new parents—mostly up to employers has
resulted in just 11 percent of civilian workers having such benefits, according
to the US Bureau of Labor Statistics. Lower-income and part-time
workers—mainly women—are far less likely to have paid family leave
than other workers. Some new parents can use paid sick or vacation days, or
other forms of paid leave after childbirth or adoption. But about one-third of
the workforce has no such benefits.

The federal Family and Medical Leave Act (FMLA) enables
workers with new children or family members with serious medical conditions to
take unpaid job-protected leave, but only covers about half the workforce. Only
California and New Jersey have state paid family leave insurance programs, and
six jurisdictions have temporary disability insurance programs offering
biological mothers partial pay during the “disability” of pregnancy
and childbirth. The law largely neglects workplace flexibility in scheduling,
policies to support pumping breast milk or breastfeeding for workers at all
levels, and protections against discrimination for workers with family
responsibilities.

Based on interviews with 64 parents nationwide, this report
examines work-family supports in the United States, and the disparate access
that employees have to such supports. It compares paid leave and other
work-family policies in the US with those of other countries and the standards
firmly established in international law. It also considers the health,
financial, and career impacts of becoming a parent in America, where legally
guaranteed paid leave is either limited or entirely absent and workplace
attitudes are frequently hostile toward workers with family responsibilities.

Human Rights Watch heard
consistent accounts of the harmful consequences of inadequate paid family and
sick leave after childbirth or adoption, employer reticence to offer
breastfeeding support or flexible schedules, and career fallout from becoming
parents. Parents with short and unpaid leaves described delaying immunizations
and health care visits for babies; physical and mental health problems for
parents; short periods or early cessation of breastfeeding and dismal
conditions for pumping; financial hardship; debt; demotion; and denials of
raises or promotions. Same-sex partners of biological mothers were almost all
denied even unpaid FMLA leave. Most interviewees said that work-family
supports—even a few weeks of paid leave for themselves or their
partners—would have significantly eased these difficulties. Human Rights
Watch also interviewed several parents who benefited from flexible work
policies and paid family leave and were intensely loyal to their employers as a
result. They provided strikingly different accounts to those who lacked such
supports.

For example, many parents described how lack of paid leave
and flexible work conditions jeopardized their health and that of their
children. Samantha B. returned to work eight weeks after having a Cesarean
section even though she was in pain from an infected wound and had trouble
walking. Her few days of sick pay were depleted and she could not afford more
unpaid leave. Hazel C. hemorrhaged due to a retained placenta and lost
one-third of her blood six weeks postpartum, but was on the job one week later
because she too could not afford more unpaid time off. Hazel had used her two
weeks of paid sick time right after birth, and was not entitled to more. Diana
T. had such severe postpartum depression that she despised her baby. But her
employer threatened to fire her when she tried to use the small number of paid
sick days to which she was entitled, and she never sought treatment. Some
families delayed or missed health visits and immunizations for their babies
because their employers would not give them time off after maternity or
paternity leaves, or because they lost health insurance during unpaid leave.
Dozens of women said they wanted to continue breastfeeding for the health of
their babies, but workplace conditions for pumping were so difficult that they
gave up nursing early.

Financial distress due to work leave with little or no pay
was also a major issue for parents. Christina S. was a psychologist working two
jobs when her baby was born, with two weeks leave from one job and eight from
the other, mostly unpaid. She worked extra hours when pregnant to save money.
But losing income during maternity leave led her to incur credit card debt,
have trouble paying rent, and resort to a food bank. Juliana E., a single
mother, had partial pay during her eight-week maternity leave. But money was so
tight she ended up borrowing from family and friends, missing car payments,
getting food stamps, and going on welfare for a few months. For those who lost
health insurance during leave and had to purchase their own, high premiums
together with lost income devastated their finances. This was the case for
Isabella V., a teacher who could not afford food and her mortgage during
maternity leave and resorted to food stamps and other public assistance.

Another major theme in the interviews was workplace
discrimination and career damage related to taking leave and having new family
responsibilities. Many women said that merely revealing they were pregnant and
requesting leave triggered tensions with employers, and sometimes demotions or
pay cuts. Kimberley N.’s employer was hostile to her maternity leave
request, and gave her a terrible performance review after returning to work,
utterly different from the glowing reviews of prior years. Abigail Y.’s
employer said it was imperative that no one get the impression she was taking
maternity leave, and insisted that she teach all her college class hours before
giving birth. Many women, including Kimberley and Abigail, consequently quit
their jobs and wound up in far less senior, lucrative, or rewarding positions.
US law does protect against discrimination on the basis of sex, including
pregnancy, but proving such discrimination is not easy, and women said they
feared that pursuing discrimination claims would endanger their jobs or
careers.

Polls show overwhelming public support for policies to assist
working families and protect workers’ rights. In a 2010 survey of
registered voters, 76 percent of respondents endorsed laws that would provide
paid leave for family care and childbirth, 69 percent endorsed paid sick day
laws, and 82 percent said they would support legislators who would work for
stronger laws against discrimination and unfair treatment at work.

Still, reform has been painfully slow. Although skeptics of
work-family supports say they burden business, employers could benefit from such
reforms through reduced turnover, savings on recruitment and training costs by
retaining experienced employees, and increased productivity by loyal workers.
Small businesses whose employees could tap into a pooled public family leave
insurance fund (such as exists in California and New Jersey) would be on more
equal footing with larger companies that offer paid leave, and better placed to
recruit talented employees. Employers whose workers access such funds would
save on payroll, enabling them to hire substitutes if they wish. While some
administrative burdens on employers exist when workers take leave, they already
exist for FMLA-covered employers, and most businesses report that FMLA
administration is easy. According to new research on the California paid family
leave program, most businesses found the program had minimal impact on their
operations; paid family leave had either a positive effect or no noticeable
effect on productivity, profitability, turnover, and employee morale; and small
businesses were less likely than large ones to report any negative effect.

Skeptics also assert
these supports may be costly to government, and thus taxpayers. But studies
show the overall costs of maternity, paternity, and parental leave relative to
population and gross domestic product are modest, even in countries with
generous leave benefits. Public expenditures on maternity leave, for example,
are estimated to amount to an average of 0.3 percent of GDP in countries in the
European Union and the Organization for Economic Co-Operation and Development.
The diversity of approaches in other countries shows there is no single
prescription for paid leave and work-family policy, and the US could take many
different paths to establish work-family supports in line with the needs of its
economy, regulatory structure, and workforce. This makes it difficult to
estimate the financial cost of such supports. But other countries’
experiences indicate they are not daunting, and that the social, physical, and
emotional toll of failing to offer such support is itself significant.

Empirical research from around the world underscores the
need for work-family supports, including paid and sufficiently long leave for
new parents. Studies have shown lesser rates of immunization and health visits
for babies when maternity leaves are short, higher infant mortality where
parental leave is unpaid, lower rates of breastfeeding connected with early
return to work, and increased risk of depression among mothers with short
leaves. Data on poverty provides evidence of the financial importance of paid
family leave after childbirth or adoption. The entry of families into poverty
has been shown to be strongly associated with childbirth, especially in
female-headed households.

America’s deficient work-family policies are not just
a human concern; they are a human rights concern. International treaties
contain concrete provisions on protections for workers with family care-giving
responsibilities, and call for an array of work-family policies, including paid
leave for new parents. The US is not a party to the treaties dealing most
directly with work-family supports, and thus is not in violation of them. But
it is failing its workers and families by ignoring these rights. As a result,
it should not only adopt policies to support working families but also ratify
the treaties that embody these rights, including the Convention on the
Elimination of All Forms of Discrimination against Women.

Human Rights Watch
recommends the US establish paid family leave in connection with childbirth and
adoption, and for workers to care for family members with serious health
conditions. National paid family leave policy would provide the most efficient
and equitable framework, but with federal legislation looking doubtful, states
should establish paid family leave insurance programs funded through small
payroll tax contributions, as has happened successfully in California and New
Jersey. The length of paid leave currently proposed in state bills, generally
about six weeks, would be a positive start. But states should consider moving
toward wage replacement for the three months guaranteed under the FMLA—or
longer.

Human Rights Watch also recommends that federal and state
governments establish other work-family supports, including promoting flexible
schedules and work conditions, expanding coverage of workers protected under
breastfeeding laws, and amending anti-discrimination laws to explicitly ban
discrimination based on family responsibilities. It should also enact minimum standards
for paid sick days, and ensure workers can use them to care for ill family
members or new children.

Profiles of Parents Lacking Work-Family Supports

Diana T.

Diana T.
was 18 and worked full-time at a large retail store when her first daughter was
born. Her manager was unhappy about her pregnancy, and forced Diana to pick
items off the floor late in her pregnancy, even if other staff was available
to do so. Diana took a six-week leave with no pay when her first daughter was
born since her employer did not allow her to use accrued sick pay. She had a
nine-week leave when her second daughter arrived: six paid at 60 percent of
her salary (of less than $30,000 per year), and one paid in full through
accrued paid time off. Diana fell into credit card debt and had trouble
paying rent during her unpaid leave. She also needed two surgeries shortly
after the second birth. She requested, but was denied, a week off to heal and
returned to work three days after surgery. Lacking a space at work to pump,
Diana breastfed her first baby for two months, well short of the four to
twelve months she had originally hoped. Diana had post-partum depression
after both children, but especially after her first baby, who was ill.
Diana’s employer regularly threatened to replace her if she took time
off for the baby’s frequent medical appointments and often switched her
to night work, which was especially difficult for her as a single parent.
Diana went without health insurance for more than a year, and was therefore never
treated for her depression.

Samantha B.

When her
son was born, Samantha B. worked at a non-profit organization that helped
formerly incarcerated people find jobs. She took eight weeks of leave, four
paid with accrued vacation and sick leave, and four unpaid. Samantha’s
husband got two days of paid parental leave, and took two weeks of vacation.
Returning to work was difficult. Samantha could not work a late shift due to
limited child care hours, and for several months suffered abdominal pains and
could not walk easily due to an infected C-section wound. She was laid off a
few months after returning to work, and told that someone was needed with a
more flexible schedule. Samantha nursed for three months but stopped shortly
after going back to work because there was no private or feasible place to
pump (her employer suggested using a heavily trafficked public restroom with
no electric outlets and just two stalls). The unpaid leave took a financial
toll. Samantha and her husband—who took on freelance work to supplement
his full-time job—went into debt, deferred her student loans, and
dipped into savings to pay rent. Her credit cards went into default and she
received public assistance for months.

Sarah O.

Sarah O.
had no paid maternity leave from her college teaching jobs after her first
two children were born. She had only about three weeks off, once from a
semester break and once by arranging for a substitute. She could not afford
to take the unpaid leave to which she was entitled with her third child, and was
back on the job after taking some sick days and the week of spring break. Her
husband had no paid paternity leave, and even had to leave Sarah when she was
in labor with one baby to go to work. Sarah’s breastfeeding was
adversely impacted by returning to work when her babies were about three
weeks old: she was unable to establish breastfeeding at all with her first
child, and could only sustain it for about three months with the other two.
One of Sarah’s employers told her that he hoped she would not have more
children, and she was informed that she is unlikely to get tenure. She
believes having children diminished her tenure chances.

Theresa A.

Theresa A.
has three adopted children. She had no leave at all for the first two
adoptions because she was not entitled to FMLA leave with one employer, and
later could not afford unpaid leave even when entitled to time off under the
FMLA. For her first adoption, Theresa returned home with her son from Russia,
put him to bed at 5 a.m., and was at work by 11 a.m. With the second, Theresa
took half a day off, and her partner had two weeks off. With the third
adoption, Theresa’s boss allowed her to take 12 weeks off under the
FMLA: eight weeks paid through accrued annual leave and four weeks unpaid.
Theresa would have taken leave for the first and second adoptions if it had
been paid and she had been eligible. Both of her sons had behavior and
emotional problems that leave time would have helped to address. The first,
who was 29-months-old when he was adopted, was behind in skills and had an
eating disorder. He was terrified to be away from her, and it took four
people at day care to hold him so she could leave each day. Theresa’s
second child, who had been through 13 foster placements, had severe behavior
problems.

Marissa R.

Marissa R.
and her same-sex partner have a toddler son and twin babies. Marissa is the
biological mother of the children and was not working when her twins were
born. Her partner’s employer refused to grant her family leave when the
children were born. The twins were born premature and spent weeks in the
hospital, and Marissa needed an emergency surgery and months of painful
treatment when her C-section wound became infected. Her partner was unable to
take leave to support her during this time.

Hannah C.

Hannah C.
worked close to 38 hours a week in a bank when she became pregnant—just
short of full-time. As a result she had no benefits, and did not take a day
off during her nine months of pregnancy even though she was ill throughout.
Instead, she was allocated the station closest to the restroom so that she
could take two steps to throw up, freshen up, and come back out. Hannah was
not offered paid maternity leave and she left her job when her son was born.
She started babysitting other children and doing odd jobs when her baby was
about a month old, and struggled for many months after the birth to pay for
rent and food. She eventually resorted to food stamps.

Abigail Y.

Abigail Y.
was working as a college professor when she gave birth to her daughter and
had no maternity leave. She did have a few weeks off, but only by teaching
all her class hours before giving birth, including leading a sea kayaking
trip when she was seven months pregnant. Abigail’s employer was very
negative about her pregnancy, and told her it was imperative there be no
perception that she had taken maternity leave. She had previously been
promoted and was in good standing with the college. Abigail returned to work
when her baby was eight-weeks-old, even though she did not feel sufficiently
recovered from her difficult labor. She resigned three weeks later due to the
hostility she felt after having her baby, and inflexibility around her
schedule. Abigail’s second child was uninsured from ages 12-20 months,
and Abigail herself was almost hospitalized for pneumonia because of a
delayed a doctor visit during this time. The family went into debt, paid the
mortgage late a few times, and almost had its utilities cut off.

Helen N.

Helen N.,
a nurse practitioner who worked more than 50 hours a week, requested a
reduced schedule when she was pregnant with her second child. She was refused
and quit her job. Helen took work as a contract nurse, which enabled her to
work fewer hours but without benefits, so she had no paid leave at all when
her child was born. After seven weeks she took a temporary full-time job
because the family could not manage without her income. She now works
part-time as an on-call contract nurse. Taking some unpaid leave and shifting
to an on-call schedule has been difficult financially. The money that she and
her husband saved during her pregnancies was not enough, and foreclosure on
their home was only averted with help from their parents. Helen’s
mother gives her grocery money, and she and her husband buy health insurance
with minimal coverage. In 2009 they had $13,000 in pregnancy-related medical
bills not covered by health insurance.

Paula R.

Paula R.,
an attorney, asked for a reduced or flexible schedule after her son was born.
She was refused, contributing to her decision to quit. When her daughter was
born two years later, Paula worked 30 hours a week at a small firm and had no
benefits. She took a five week maternity leave, all unpaid. Her husband had
no paternity leave, but had a somewhat flexible schedule. When Paula went
back to work, she found that her employer had hired a new attorney and given
away her office. In the year after her daughter was born, Paula had a chronic
fever and trouble walking, and her hands were blue and swollen. Her daughter
had constant ear infections and colds, and Paula used her scarce time off for
her children’s health care rather than her own. Months later, she was
diagnosed with a serious autoimmune illness. Paula breastfed her son for one
year and pumped in the bathroom at work, which was uncomfortable. She stopped
breastfeeding her daughter after six weeks, even though she had hoped to do
so for six months, because she had trouble establishing breastfeeding and
could not sustain it when back to work five weeks after childbirth.

Juliana E.

Juliana E. works in sales and marketing. When her daughter was born,
she took an eight-week leave, with four weeks of short-term disability pay,
two weeks of sick and vacation pay, and two weeks unpaid. She could not
afford more unpaid leave and was still tired and weak from a C-section when
she went back to work. She also had post-partum depression (which she thinks
was related to the stress of putting her daughter in day care at just eight
weeks), and stopped breastfeeding after three to four weeks because of her
short leave. Juliana’s daughter, who developed a serious respiratory
illness when she was four months old, needed to be treated with a nebulizer
every four hours for several months. Juliana took unpaid leave to be with her
for a short time, and needed intermittent time off for the baby’s
doctor visits. Her employer claimed she was not entitled to time off under
the FMLA and took disciplinary action against her for the time she took to go
to the doctor. Juliana has some debt, in part from her unpaid leave, and
needed financial help from family and friends. She was also late on car
payments and received food stamps and other public assistance for a few
months. The baby’s father took a second job and offers some financial
help.

Kimberly N.

Kimberly N. had a senior position at a charitable organization when
her son was born. She planned for a six-week maternity leave, but her son was
born with a life-threatening condition, and she ended up taking 12 weeks with
partial pay. Kimberly’s supervisor was unhappy that she took such a
long leave and refused to let her work part-time or from home. After going
back to work, Kimberly had a terrible performance evaluation that contrasted
sharply with her previous positive evaluations. She soon left her job, which
significantly impacted family finances. Savings quickly dwindled, debts grew,
and Kimberly filed for bankruptcy. A few months later, she found a part-time
job at a lower level with no benefits but was laid off when the recession hit.
She worries that future employers will question her period of unemployment.

Anita R.

Anita R. works in a veterinary practice which offers no paid
maternity leave benefits. After one of her children was born, Anita took
three weeks off and used accrued vacation time. With another, she took four
weeks of leave, three unpaid and one with vacation pay. She has no sick leave
benefits. Anita’s husband had no paid paternity leave, and could not
take time off when the children were born. When Anita discussed her last
pregnancy and leave with her employer, the office manager cut her hours and
pay. She subsequently filed a pregnancy discrimination claim but dropped it
for fear of losing her job. Pumping breast milk at work was difficult.
Anita’s co-workers seemed horrified at the idea of a pump, and were
critical of her taking short breaks to express milk. Anita’s family
fell behind on credit card bills and car payments during her unpaid leave,
and money for food was tight.

Methodology

This report is based on interviews with parents, health
providers, educators, academic experts, work-family policy advocates, and state
and federal government officials from November 2009 through October 2010.

Human Rights Watch interviewed 64 parents. Some of these
interviewees were identified through direct connections with organizations,
including groups that provide parents with services and information
related to parenting, childcare, and healthcare issues; work-family advocacy
organizations; groups that advocate for the rights of same-sex parents; local
parenting support groups in several states; and grassroots working women
organizations. Other subjects volunteered to be interviewed after seeing
announcements in online parenting discussion sites, blogs, or listservs for
parents.

Interviewees lived in Arizona, California, Colorado,
Connecticut, Florida, Massachusetts, Minnesota, New Hampshire, New York, North
Carolina, Maryland, Oregon, Pennsylvania, Texas, Washington, DC, Washington
State, and Wisconsin. Many of these states were included because they had
pending legislation on paid family leave, whereas others were included because
state civil society groups are promoting work-family policy reforms. Most
interviews were done by telephone, which intermediary organizations recommended
due to working parents’ busy schedules. All interviews were in English.

We also conducted extensive background research, including
reviewing existing laws and bills, statistics from government sources, academic
research by authorities in the work-family policy field, and a wide range of
studies produced by international organizations (including the International
Labour Organization and the Organization for Economic Co-Operation and
Development) and US civil society groups.

The names of all parents featured in the report have been
replaced with unrelated names and initials in order to protect their privacy
and to avoid potential employer retaliation. Identifying information for health
professionals has also been withheld when requested. Where ages of children are
mentioned, this is as of the date of the interview.

US policy shortcomings for working families extend far
beyond the issues covered in this report, and include lack of affordable
quality childcare, limits on mandatory overtime, and other supports needed by
caregivers of elderly and disabled family members. We chose to focus on paid
leave for new parents, workplace flexibility for parents after childbirth or
adoption, and discrimination against working parents because these areas provide
a particularly sharp contrast with international human rights law and global
trends, and because they illuminate the distinct workplace disadvantages that
women with young children—a fast-growing segment of the
workforce—face.

The terminology relating to work leave varies in different
jurisdictions. For this report, the terms below have the following meanings:

“Family leave” is an over-arching term referring
to several family-related reasons for taking time off from work. It includes
leave for childbirth, care for and bonding with a newborn or adopted child, and
care for a family member with a serious health condition. It includes
maternity, paternity, and parental leave.

“Maternity leave” is leave available to mothers
in connection with birth or adoption. It is generally shorter than subsequent
parental leave.

“Parental leave” is supplemental leave available
to mothers or fathers to care for a new child, generally after a period of
maternity or paternity leave, and in many countries is much longer than
maternity or paternity leave. In common usage, this term may also refer to any
leave for parents, including maternity and paternity leave.

“Paternity leave” is leave available to fathers
in connection with birth or adoption. It is generally shorter than subsequent
parental leave.

I. Background: US
Workforce Changes and Gender Inequality

During the past century, the number of women in the US
workforce and families in which both parents are employed has increased
dramatically. In addition, the care needs of increasing number of families are
being met by family members—typically women—who are in the paid
labor force.

In 1900 only 18 percent of women—and just 5 percent of
married women—in the United States were in the paid workforce.[1]
By 1969, women comprised one third of the labor force, rising to roughly 50
percent today.[2]
Workforce participation by married women with children under six has soared
from 12 percent in 1950,[3]
to nearly 40 percent in 1975, and 64 percent by 2008.[4]
As of 2009, 39 percent of mothers were primary breadwinners, and 63 percent
were co-breadwinners who contributed at least one quarter of the family
earnings.[5]
More than 19 million families with children in the US have a mother who is the
primary or co-breadwinner, and 70 percent of children live in households where
all adults are employed.[6]

But while the sexes are equally represented in the
workforce, care-giving responsibilities still fall disproportionately to women:
according to a 2009 survey, women make up 66 percent of unpaid family
caregivers in the US.[7]
The last major survey on the Family and Medical Leave Act (from 2000) found
women constituted over 58 percent of FMLA leave-takers.[8]

Nor has the growing presence of women in the labor force
eliminated a significant gap in earnings, especially for mothers. As of 2009
the ratio of women’s and men’s median annual earnings was 77.0 for
full-time, year-round workers.[9]
Even when controlling for factors such as experience, education, industry, and
hours, a wage gap remains.[10]
Mothers experience a wage penalty of roughly three percent per child after
taking into account reductions in work hours, shifts to more family-friendly
jobs, and loss of experience during interruptions for childbearing.[11]
One analysis of Department of Labor data found that mothers earn just 60 cents
for every dollar that fathers earn.[12]

The wage gap goes hand in hand with women’s broader
economic insecurity. Women hold approximately 59 percent of low-wage jobs.[13]
Women’s lower average earnings contribute to them being 32 percent more
likely than men to be poor (based on 2009 data).[14]

Although women are making gains in US management overall, a
glass ceiling still exists at senior levels. A 2009 study found women held only
20 percent of senior management positions at private companies, and 35 percent
of private companies have no women in senior management at all.[15]
Women head only 2.6 percent of Fortune 500 companies and hold only 15 percent
of those companies’ board seats.[16] They represent
just over 8 percent of the highest paid positions among companies in Standard
and Poor’s 100 Index.[17]

Women’s Workplace Inequality

As of 2009, the ratio of women’s and
men’s median annual earnings was 77.0 for full-time, year-round
workers.

An analysis of Department of Labor data found
that mothers earn just 60 cents for every dollar that fathers earn.

Women hold approximately 59 percent of low-wage
jobs.

Women hold only 20 percent of senior management
positions at private companies, and 35 percent of private companies have no
women in senior management at all.

Women head only 2.6 percent of Fortune 500
companies and hold only 15 percent of those companies’ board seats.

Women represent just over 8 percent of the
highest paid positions among companies in Standard and Poor’s 100
Index.

A 2007 study assessed how evaluators in a
laboratory experiment and actual employers responded to fictitious, equally
qualified job-applicants if they were parents or non-parents. It found:

Mothers were far less likely than non-mothers to be
recommended for hire (47 of mothers recommended, and 84 percent of
non-mothers).

The recommended starting salary for mothers was
an average of $11,000 less than for non-mother women.

Mothers were judged to be significantly less
competent (10 percent lower) and committed (15 percent lower) than women
without children.

Mothers were held to stricter performance and
punctuality standards, and needed a significantly higher score on the
management exam than childless women before being considered hirable.

Actual employers called back 2.1 times more
childless women than mothers for interviews.

In contrast, fathers were offered a significantly
higher salary, were seen as more committed to work and slightly more
competent, were considered more promotable, and were more likely to be
recommended for hire than childless men.

EEOC data show an increase in pregnancy
discrimination charges received from 3,977 in fiscal year 1997 to 6,196 in
fiscal year 2009.

Women who are mothers face particularly severe hiring and
promotion bias. A 2007 study on discrimination against mothers published in the
American Journal of Sociology found they were significantly less likely to be
recommended for hire, were less likely to be rated as promotable or recommended
for management, and were offered significantly lower starting salaries than
non-mothers.[18]
The study involved two elements: a laboratory experiment to measure how
evaluators rated applicants in terms of perceived competence, workplace
commitment, hireability, promotability, and recommended salary; and an audit
study of actual employers to measure positive responses to applicants based on
the number of interview callbacks. In both studies, participants evaluated
application materials for a pair of same-gender equally qualified job
applicants who differed on parental status but were otherwise similar.

The laboratory study found that mothers were judged to be
significantly less competent (10 percent lower) and committed (15 percent
lower) than women without children. Mothers were also held to stricter
performance and punctuality standards, and needed a significantly higher score
on the management exam than non-mother women before being considered hirable.
The recommended starting salary for mothers was an average of $11,000 less than
for non-mother women. They were rated as less promotable and were less likely
to be recommended for management. While participants recommended 84 percent of
female non-mothers for hire, they recommended only 47 percent of mothers. In a
pre-test where there was no motherhood status manipulation, there were no
significant differences in women applicants’ ratings, suggesting that
motherhood status produced the lower ratings in the laboratory study. The study
also compared ratings of fathers with male non-fathers, and found that fathers
were offered a significantly higher salary than non-fathers, were seen as more
committed to work and slightly more competent, were considered more promotable,
and were more likely to be recommended for hire.[19]

In the audit study, resumes and cover letters from a pair of
fictitious, equally qualified, same-gender applicants (male and female) were
sent to employers advertising for entry- and mid-level marketing and business
jobs. The researchers sent two fictitious same-gender applications, one
reflecting that the applicant was a parent and the other not, and monitored
whether gender and parental status impacted the odds of being called for an
interview. The two applicants had uninterrupted work histories and equally
strong educational credentials and professional experience. The fictitious
parent applicant listed things like participation in elementary school
parent-teacher associations. The results suggested that real employers do
discriminate against mothers. Childless women received 2.1 times as many
call-backs for interviews as equally qualified mothers. Fathers were called for
interviews at a slightly higher rate than non-fathers, although the difference
was not significant.[20]

The rising numbers of women in the labor force coupled with
their persistent disadvantage, especially as mothers, has contributed to an
increase in pregnancy discrimination claims. The US Equal Employment
Opportunity Commission (EEOC) publishes annual data on pregnancy discrimination
charges filed with them and with state and local fair employment agencies.
Recent data shows an increase in charges received from 3,977 in fiscal year
1997 to 6,196 in fiscal year 2009.[21]

II. US Work-Family
Supports and Disparate Access

In the United States, laws to support workers with family
care obligations are minimal. There is no federal guarantee of paid family
leave. Just two states offer such leave, and six jurisdictions offer temporary
disability insurance to pregnant women and new mothers. There is no national
law establishing minimum standards for paid sick days. While there is some
progress in the law when it comes to other work-family supports, such as
workplace accommodation for breastfeeding, significant gaps remain. Moreover,
explicit legal protections against discrimination on the basis of family
care-giving responsibilities are absent in federal law and only slowly emerging
in state and local laws.

Many reform proposals are under discussion, and there is
considerable public support for change. Opinion polls indicate that most
Americans want policy reform to alleviate the conflict between work and family
responsibilities. A 2010 survey of registered voters found that 76 percent of
respondents endorsed laws to provide paid leave for family care and childbirth,
69 percent endorsed paid sick day laws, and 82 percent said they would support
legislators who worked for stronger laws against discrimination and unfair
treatment at work. Sixty-four percent of all respondents supported policies to
give workers the right to request a flexible schedule, as did 70 percent of
women, and 71 percent of parents.[22]
Older surveys show similar levels of support: 76 percent of respondents in a
2007 national survey favored expanding the Family and Medical Leave Act (FMLA) to
offer paid leave.[23]

Federal Laws and Bills

The federal Family and Medical Leave Act of 1993 guarantees
only unpaid family leave for the birth and care of a newborn
child, for adoption and foster-care placement of a child, to care for an
immediate family member (spouse, child, or parent) with a serious health
condition, and for an employee to take their own medical leave.[24]
The maximum leave period is 12 weeks per year (recently extended to 26 weeks
for military families). It applies to all public agencies, public and private
elementary and secondary schools, and companies with 50 or more employees.
Employees are eligible if they have worked for their employer for a total of 12
months, at least 1,250 hours over the past year, and at a location where the
company employs 50 or more employees within 75 miles. Leave under this act is
job-protected and group health insurance benefits must be maintained during
leave.

Only about half of the US workforce is eligible for FMLA
leave, and some estimates show that only about 20 percent of new mothers work
for covered employers and are eligible for FMLA leave.[25]
In 2010 the Department of Labor issued an interpretation that clarified that an
employee who assumes the role of caring for a child “in loco
parentis” has a right to FMLA leave regardless of the legal or biological
relationship.[26]
This is particularly significant for parents in same-sex relationships, who
have often been denied leave to care for their family. However, unmarried
same-sex partners (even those in legally recognized civil unions or domestic
partnerships) are still not entitled to FMLA leave to care for one another.
Moreover, employer compliance with the FMLA is problematic: a 2008 national
survey of employers found that between 18 and 21 percent of respondents were
not in compliance.[27]

The Pregnancy Discrimination Act of 1978 does not require
paid family or maternity leave, and provides no job protection after leave.
Instead, it regulates employers who provide disability benefits for workers on
leave, including temporary disability insurance.[28]
It mandates that if disability insurance is offered for other purposes, it must
cover pregnancy, childbirth, and pregnancy-related medical conditions. The act
also makes it unlawful for employers to fire, refuse to hire, deny a promotion,
or deny fringe benefits to a woman because she is pregnant. An employee or
applicant seeking to prove a case of pregnancy discrimination must show that
the employer knew of the pregnancy, and, because of the pregnancy, took some
adverse employment action or denied some benefit afforded to other employees.
Charges must be filed with the Equal Employment Opportunity Commission (EEOC)
within a short time limit (generally 180 days).

Federal
anti-discrimination law does not explicitly prohibit discrimination on the
basis of family responsibilities, though cases have been brought under other
legal theories (including discrimination on the basis of sex under Title VII of
the Civil Rights Act of 1964).[29] Under an executive order,
the federal government does prohibit employment discrimination against federal
government employees on the basis of their “status as a parent.”[30] In addition, the EEOC has issued guidance
explaining how discrimination against workers on the basis of their family care-giving
responsibilities might constitute discrimination based on sex, disability, or
other characteristics protected by federal employment discrimination laws.[31]

Federal law does little to promote workplace flexibility for
workers with family responsibilities, such as protecting workers from
retaliation for requesting flexible schedules or other accommodations.[32]
Breastfeeding support made progress in 2010 with the adoption of the national
health care act.[33]
This requires that employers provide reasonable break time to express breast
milk for one year after childbirth and provide “a place, other than a
bathroom, that is shielded from view and free from intrusion from coworkers and
the public” for expressing milk. Employers with fewer than 50 employees
are not subject to the break time requirement if compliance would impose an
undue hardship. The law covers only workers who are not exempt from the Fair
Labor Standard Act (FLSA) minimum wage and overtime laws, and thus covers
mainly hourly workers (e.g. retail workers, factory workers, and restaurant
workers). FLSA exempt workers, often managerial level, are not covered.[34]

From January 2009 to January 2010 the 111th
Congress (and many prior sessions) saw bills that would establish important
work-family supports, including three (see below) related to paid family leave.
The sponsors maintained that these were needed in a recession to protect
workers’ incomes during family leaves, and to support family health and
competitive business.

The Family Leave Insurance Act would
guarantee workers up to 12 weeks of paid leave for time off under the FMLA.[35] The bill calls for wage replacement on a sliding scale funded by employer and
employee contributions of 0.1 to 0.2 percent of the employee’s income. It
would cover all non-federal employers with two or more workers.

The Family Income to Respond to Significant
Transitions (FIRST) Act would provide up to $1.5 billion for grants to states
to develop and implement paid family and medical leave programs.[36] The grants would fund paid family leave of at least six weeks.

The Federal Employees Paid Parental Leave
Act would guarantee federal employees four weeks of full pay while on FMLA
leave for the birth or adoption of a child.[37]

These bills garnered few Republican co-sponsors, and after
the 2010 congressional elections, prospects for enactment appear bleak.

Bills to promote workplace flexibility in recognition of
work-family conflicts, and to protect workers requesting flexible work
conditions, were also introduced in the 111th Congress. These
include the Working Families Flexibility Act, which would establish a right to
request flexible work terms and conditions, including hours, times, and
locations for work, for some employees working for establishments with at least
15 employees. The law would govern processes for employers to consider such
requests, and would prohibit discharge or discrimination against employees
making a flexibility request.[38]

Other bills were tabled that would help mitigate work-family
conflicts and related gender inequality. One was the Breastfeeding Promotion
Act, which would establish that breastfeeding and expressing breast milk at
work are protected conduct under anti-discrimination laws and provide tax
incentives to employers providing appropriate conditions for breastfeeding or
pumping.[39]
Another is the Healthy Families Act, which would enable workers to earn up to
seven paid sick days per year to recover from short-term illness, to care for a
sick family member, to pursue routine medical care, or to seek assistance
related to gender-based violence.[40]
A third bill, which passed the House but failed in the Senate, was the Paycheck
Fairness Act, which would have allowed victims of gender-based wage
discrimination to receive compensatory and punitive damages, ensured that women
can access the same remedies available for other forms of wage discrimination,
and increased transparency about salary information.[41]

The Obama administration supports many of these bills and
has stated that promotion of workplace flexibility is a priority.[42]
The White House Council on Women and Girls hosted a forum on workplace
flexibility with business owners, corporate leaders, workers, policy experts,
and labor leaders in 2010, and the Department of Labor is hosting a national
dialog on workplace flexibility throughout the country in 2011.[43]
The White House Middle Class Task Force includes improving work-family balance
as one of its top five priorities.[44]
The Department of Labor will also update its surveys on the FMLA in 2011.

State Laws and Bills

National reforms would offer more coherent work-family
supports, but in the current political environment, state reforms are more
realistic. Several important work-family reforms have occurred at the state
level and other proposals are gaining momentum, yet state law is far from
providing comprehensive or equitable work-family supports.

In terms of paid leave for new parents, a handful of states
offer some form of wage replacement through state programs. Temporary
disability insurance (TDI) programs in California, New Jersey, New York, Rhode
Island, Hawaii, and Puerto Rico allow biological mothers to draw on public
insurance for pregnancy and childbirth. Since TDI programs cover the
“disability” of pregnancy-related complications, giving birth, and
recovering from childbirth, fathers and adoptive mothers are generally not
eligible for this insurance to care for a new baby. The programs are funded
through payroll tax contributions, and benefits are typically calculated as a
capped percentage of weekly wages. The maximum weekly benefits ranged from just
over $100 in Puerto Rico to almost $1,000 in California in 2010. Benefit
duration for pregnancy or childbirth is generally about six weeks or slightly
longer depending on the medical circumstances.

In addition, California and New Jersey offer state paid
family leave insurance. These programs are major innovations in the United
States. Washington State also adopted a paid parental leave program, but has
not yet implemented it.[45]
California enacted paid family leave in 2002 and implemented its program in
2004.[46]
Workers covered by California disability insurance can get up to six weeks of
pay during leaves to care for a seriously ill child, spouse, parent, or
registered domestic partner, or to bond with a new child. The act covers
part-time workers and small business employees. The weekly benefit amount is
approximately 55 percent of earnings, up to a cap of $987 per week (as of
2010). The program is financed together with California’s broader
short-term disability insurance through a 1.1 percent withholding tax on
employees (not employers). All employees who pay into the short-term disability
fund also pay into the family leave fund.

New Jersey’s paid family leave insurance program was
enacted in 2008 and became operational in 2009. Workers there are entitled to
six weeks of paid leave to care for a new baby or seriously ill family member.
They can receive two-thirds of their weekly pay, up to $561 (as of 2010). This
program is funded by employee payroll taxes of .0012 percent of the taxable
wage base, capped at $35.64 per year in 2010. The New Jersey program also
covers part-time workers and small business employees.[47]

In both California and New Jersey, the paid family leave
insurance programs faced fierce opposition when proposed, especially from
business lobby groups. But a few years into their implementation, the
opposition has largely disappeared. New research on the California paid family
leave program, involving a survey of 500 workers and 253 establishments, found
that businesses reported largely positive or neutral effects. The vast majority
of establishments responded that the program had minimal impacts on their
business operations.[48]
They said that the program had a “positive” or “no
noticeable” effect on productivity (88.5 percent), profitability and
performance (91 percent), turnover (92.8 percent), and employee morale (98.6
percent).[49]
Smaller establishments were less likely to report negative effects than large
ones.[50]
Most (86.9 percent) said that the program had not resulted in any cost
increases.[51]

California Paid Family Leave Insurance Program Results

Research
published in 2011 on the California paid family leave program, based on a
survey of 500 workers and 253 establishments, found largely positive or
neutral effects:

The majority of establishments responded that the program had minimal
impacts on their business operations.

Business establishments said that the program had a
“positive” or “no noticeable” effect on:

productivity
(88.5 percent)

profitability
and performance (91 percent)

turnover (92.8
percent)

employee
morale (98.6 percent)

Smaller establishments were less likely to report negative effects than
large ones.

Most establishments (86.9 percent) said that the program had not
resulted in any cost increases.

Among workers with “low-quality” jobs, 83 percent of those
who received paid leave benefits returned to their employer, compared to 74
percent of those who did not.

The median duration of breastfeeding doubled for all new mothers who
used the program, from five to eleven weeks for mothers in
“high-quality” jobs and from five to nine weeks for those in
“low-quality” jobs.

The program increased the likelihood of breastfeeding initiation among
women with “low quality” jobs: 92.5 percent of those who used the
program initiated breastfeeding, compared to 83.3 percent of those who did
not get paid leave.

The official in charge of New Jersey’s paid family
leave insurance program said that when he asks business leaders about burdens
of the program, the response is “deafeningly silent.”[52]
In fact, he said many employers are now enthusiastic: “It comes up a lot
that people say they would give time off anyway…. They say, ‘as a
good employer I would do this [grant leave] to help employees. It’s nice
to see they can get a few dollars as well.’”[53]

There is now momentum for state-level paid family leave or
parental leave in other states. In 2010, bills on paid leave were introduced in
10 states: Arizona, Hawaii, Massachusetts, Missouri, New Hampshire, New York,
Oregon, Pennsylvania, Texas, and Vermont.[54] Most proposals
would establish four to six weeks of paid leave with wage replacement of a few
hundred dollars per week or a capped percentage of the worker’s wage.
Federal grants to support such initiatives were under consideration in 2010,
with the Senate appropriations committee voting in favor of a $10 million grant
program.[55]
Civil society groups, such as the National Partnership for Women and Families,
9to5, Momsrising, the Family Values @ Work Consortium, and A Better Balance
support these initiatives, and several have drawn up a model paid family leave
law.[56]

There is also some progress at the state level when it comes
to legislation for other forms of work-family supports, For example, two dozen
states have laws on breastfeeding and the workplace.[57]
As of late 2010, six states were considering legislation on flexible work hours
and conditions, and 30 states were considering legislation on sick leave,
mostly to guarantee paid sick days.[58]

Only Alaska and the District of Columbia have explicit state
legislation to protect workers against employment discrimination on the basis
of family care-giving responsibilities, although other states are considering
such legislation.[59]
There are municipal or other local laws on family responsibilities
discrimination in at least 22 states, and an increasing number of lawsuits.[60]
Nineteen states were considering bills on equal pay for men and women as of
late 2010.[61]

Opposition to Law Reform
and Counterarguments

The main arguments against law reform to establish
work-family supports—especially paid family leave—is that it could
be expensive for employers or taxpayers and diminish productivity by
encouraging absences. However, there is strong evidence to refute these
arguments, including empirical research from other countries.[62]

Benefits to Business and the Economy of Paid Leave

One study found that 94 percent of leave-takers who received full pay
during family leave returned to the same employer, compared to 76 percent of
employees who took unpaid leave.

Paid leave can avoid the cost of employee turnover, which can range
from 20 percent of annual pay for younger workers to 40 percent for more
senior employees.

A study on productivity growth in 19 Organization for Economic
Co-Operation and Development (OECD) countries from 1979 to 2003 found that
paid parental leave had a significantly greater positive effect on
productivity than unpaid leave.

Instituting 15 weeks of paid maternity leave in countries (such as the
US) without paid leave could increase multifactor productivity by 1.1
percent.

Employers need not shoulder the direct cost of funding paid
family leave. If states follow the lead of California and New Jersey, there
would be no employer contribution to the leave insurance funds. In those
states, and in most of the bills under consideration, family leave insurance is
exclusively financed via employee-paid small payroll tax deductions. Employer,
and even government, contributions are certainly a possibility. But California
and New Jersey have shown that paid family leave insurance can be financed with
no employer contribution.

In fact, work-family supports like paid family leave can
benefit, rather than burden, employers. Studies show, for example, that pay
during family leave increases the chance a worker will return to the same
employer. One study found that 94 percent of leave-takers who received full pay
during family leave returned to the same employer, compared to 76 percent of
employees who took unpaid leave.[63]
Another study of US women workers found that lengthier childbearing leave
(combined paid and unpaid leave) had a strong deterrent effect against women
quitting the labor force or changing jobs postpartum.[64]
New research on California’s paid family leave program found it improved
employee retention. The study distinguished between workers with “high
quality” jobs that paid more than $20 per hour and had employer-paid
health insurance, and “low quality” jobs that did not meet those
criteria. It found workers with high quality jobs were more likely to return to
the same employer. Among those with low-quality jobs, 83 percent of those who
received paid leave benefits returned to their employer, compared to 74 percent
of those not paid.[65]

Employers can also avoid recruitment and training expenses
by reducing turnover that results from workers quitting due to insufficient
work-family supports.[66]
While varying widely across fields and job positions, many estimates find
turnover to be costly—ranging from 20 percent of annual pay for younger,
less experienced, workers to 40 percent for more senior employees.[67]
Estimates from before the most recent financial downturn were even higher: one
study from 2006 estimated that turnover costs for hourly workers amounted to 50
to 75 percent of annual pay, and 150 percent of salaried workers’ pay.[68]

Work-family support policies can also foster employee
loyalty and commitment, which may in turn boost productivity and profitability.
For example, one study on productivity growth in 19 Organization for Economic
Co-Operation and Development countries from 1979 to 2003 found that paid
parental leave had a significantly greater positive effect on productivity than
unpaid leave. The study also estimated that instituting 15 weeks of paid
maternity leave in countries (such as the US) without paid leave could increase
multifactor productivity by 1.1 percent in the long run.[69]

Although the FMLA does not require paid leave, there are
valuable lessons to be learned from how even unpaid leave has impacted
employers. In the 2000 FMLA survey, 90 percent of covered establishments
reported that the FMLA had either a positive or neutral effect on profitability
and growth.[70]
Of the businesses that experienced cost savings from the FMLA, 77 percent said
decreased turnover was the number one reason for the savings.[71]
The majority of employers surveyed said that implementation was
“easy” or “somewhat easy.”[72]

Although opponents of work-family supports cite particular
burdens on small businesses, there are clear benefits for them as well. For
example, where paid family leave insurance programs are available through a
state fund, as in California and New Jersey, small employers benefit from a
leveled playing field with larger employers for recruitment. Larger employers
are usually better placed to directly fund paid leave.[73]
Enabling workers at small businesses to access a state family leave insurance
fund would give employers a better chance to recruit talented employees. Employers
will also save on salary costs during leave if employees can access state
insurance funds, freeing up funds to hire substitutes. As noted above, the 2011
survey on California’s paid family leave system found that small
businesses were even less likely than businesses with over 100 employees to
report any negative effects of the program.[74]

Low and Disparate Access

Since US law does so little to establish work-family
supports, their availability is left largely to employers. The idealized notion
is that private markets will foster such supports as employers compete for good
workers. In reality, however, huge swaths of the workforce have no such
supports, and there are enormous disparities in access.

Low and Disparate Access to Paid Leave

According to the US Bureau of Labor Statistics, only 11 percent of
“civilian” workers had paid family leave as of March 2010.

Civilian workers in the highest 25 percent of average wages are three
times more likely to have paid family leave benefits than workers in the
lowest 25 percent.

Civilian workers in the highest 10 percent of wages are six times more
likely to have paid family leave than those in the lowest 10 percent.

Full-time civilian workers are more than twice as likely as part-time
workers to have paid family leave.

Only 67 percent of US civilian workers (22 percent for the lowest
income workers) have paid sick leave, and more than a quarter lack paid
vacation days.

The percentage of employers reporting that they offered full pay during
leave after childbirth fell from 27 percent in 1998 to 16 percent in 2008.

Data on access to paid family leave—one of the most
important work-family supports—show that overall coverage is low and that
disparities among workers are enormous. According to the US Bureau of Labor
Statistics (BLS), only 11 percent of “civilian” workers (which it
defines as those in the private nonfarm economy except those in private
households, and workers in the public sector, except the federal government)
had paid family leave as of March 2010.[75] This
figure reflects benefits specifically identified as paid family leave, rather
than all forms of paid leave that might be applied during time off work to care
for family (such as paid sick and vacation days). Some workers are also
eligible for temporary disability insurance, which covers pregnancy and
childbirth related “disability,” but just 37 percent of civilian
workers have access to such insurance.[76]

For the many workers not entitled to temporary disability
insurance or to paid leave for childbirth or adoption, benefits such as paid
sick or vacation time offer the only prospect of pay during leave to care for a
new child. Unfortunately, only 67 percent of US civilian workers (22 percent
for the lowest income workers) have paid sick leave, and more than a quarter
lack paid vacation days.[77]

Trends on employers voluntarily offering paid family leave
are not encouraging. A national study of employers found that the percentage of
employers reporting that they offered full pay during leave after childbirth
fell from 27 percent in 1998 to 16 percent in 2008.[78] A
2009 survey by the Society for Human Resource Management found that 25 percent
of its member respondents provided paid family leave, compared to 30 percent in
2005.[79]

The disparities in access to paid family leave between
low-income and high-income workers are profound. According to the BLS, civilian
workers in the highest 25 percent of average wages are three times more likely
to have paid family leave benefits than workers in the lowest 25 percent.[80]
Workers in the highest 10 percent of wages are six times more likely to have
such paid leave than those in the lowest 10 percent.[81]
Access to pay during maternity leave through temporary disability insurance is
also far less available to low-income civilian workers. Only 18 percent of
workers in the lowest 25 percent of average wages have access to such
insurance, compared to 49 percent of workers in the highest 25 percent.[82]

Disparities between full and part-time workers in accessing paid
family leave are also glaring. Full-time civilian workers are more than twice
as likely as part-time workers to have paid family leave.[83]
Only 15 percent of part-time workers have temporary disability insurance
compared to 43 percent of full-time workers.[84] Women make up the
bulk (65 percent) of the part-time workforce and thus suffer disproportionately
from the lack of part-time parity.[85]
As of 2009 women who worked part time made up 26 percent of all female
wage and salary workers, compared to just 13 percent of men.[86]

Disparities between men and women in access to paid and
unpaid leave after childbirth or adoption are mixed. According to a 2004 report
analyzing data from the Urban Institute’s 2002 National Survey of
American Families, women were more likely to have access to maternity leave
than men were to paternity leave (89.3 percent versus 71.9 percent of
respondents). However, men were more likely to have paid leave (83.5 percent
compared to 76.2 percent of women respondents).[87]
Among working parents with some paid leave, women were more likely to have one
workweek or less, and men were more likely to have more than three workweeks of
paid leave.[88]
According to the 2000 FMLA survey, male leave-takers were more likely to
receive pay (70.4 percent) than female leave-takers (62.5 percent) during their
longest leave (which may include leave for their own medical reasons or to care
for family).[89]
On the other hand, when it comes to pay during just maternity leave and
paternity leave, research has found that more women workers get pay during
maternity leave than men during paternity leave. A 2008 national study of
employers found that 52 percent said they offer some pay to women on maternity
leave, compared to 16 percent offering paid leave to men on paternity leave.[90]
The study did not specify whether these employers offered paid leave to
employees at all levels, or only select employees.

Gender differences also arise with respect to unpaid FMLA
leave. The 2000 FMLA survey found that among workers with young children, men
were more likely to be eligible for FMLA leave than women (67 percent of
men and 56 percent of women).[91]
Yet in the 18 months prior to the survey, more women (76 percent) than men (45
percent) with young children took some leave.[92] This is undoubtedly
due to social expectations of women as caregivers and because women’s
income, lower on average than men’s, is easier for families to sacrifice
when the only choice is unpaid leave.

III. Global Trends and
Country Comparisons

The United States is an extreme outlier in the area of
work-family policy. Throughout the tumult of the global economy in recent
decades—including the economic downturn of recent years—countries
have adopted and expanded policies to enable workers to meet their work and family
obligations in recognition of the utterly changed composition of the workforce.

A striking example of this trend, explored in this chapter,
is in the area of paid leave for new parents and for family caregivers.[93]
Since 2008, in most countries that have seen changes to maternity, paternity,
or parental leave, the change did not reduce benefits, but rather made them
more generous or entailed structural changes without lowering benefits.[94]
Workers and employers in most countries have come to accept paid leave as a
standard and necessary social support for working families.

Appendix I contains a chart with examples of paid maternity,
paternity, parental, and additional family leave benefits in other
countries.

Paid Leave Trends and
History

For more than a century, the most widespread form of paid
family leave—paid maternity leave—has proliferated to the point of
being almost universal in developed and developing countries. In 1883, Germany
enacted the first paid maternity leave law. Others soon followed: by the First
World War, 13 other countries offered it as well.[95]
By the 1940s, nearly all European countries had established a range of social
welfare policies, including maternity benefits.[96]
Paid paternity and parental leave laws followed, starting with Sweden in 1974.
By the mid-1990s, most European countries had adopted paid paternity and
parental leave policies.[97]
Since then, countries have moved toward longer leaves and incentives for
fathers to take leaves.[98]

In 2010, a major global survey on paid leave and other
workplace benefits was published by Dr. Jody Heymann of McGill University and
Dr. Alison Earle of Northeastern University, leading experts on labor
conditions and social policies around the world. Out of 190 countries included
in the survey, 177 guaranteed paid leave for new mothers, and four did not
guarantee any pay during maternity leave (Swaziland, Papua New Guinea, the
United States, and Australia). Nine lacked sufficient information.[99]
Australia instituted paid parental leave in January 2011, bringing the global
tally to 178 countries with laws on paid leave for new mothers. The
International Labour Organization (ILO) also published a report in 2010 on
national laws on maternity protection in 167 countries, and found that 97
percent offered paid maternity leave.[100] While enforcement
of these laws is not perfect, and workers in the informal sector may not always
be covered, these laws generally benefit an enormous proportion of women
workers worldwide.

Paternity leave for fathers is also gaining ground. At least
49 countries provide some form of leave that fathers can use around the birth
of a child, according to the ILO.[101]
The number was higher when counting paid parental leave available to either
parent. The Heymann and Earle study, which covered more countries, found that
54 guarantee paid paternity leave. That study also determined that 67 percent
of the most competitive countries offer paid leave for new fathers, compared to
33 percent of the least competitive countries.[102]

The Heymann and Earle study found that 33 countries provide
workers with paid leave to care for sick family members, mostly in Europe and
Central Asia.[103]

Length of Leave and
Transferability

The length of paid leave ranges from a few days (for
fathers) in some countries to years in others. Maternity leave tends to be
longest. Of the 167 countries covered by the ILO’s maternity leave
survey, 51 percent provide at least 14 weeks, 20 percent provide 18 or more
weeks, and 35 percent provide 12 or 13 weeks of maternity leave. Only 14
percent provide less than 12 weeks of maternity leave, down from 19 percent in
1994.[104]

In most countries, maternity leave duration has increased or
stayed steady over the past 15 years.[105] OECD countries
provide on average 18 weeks of maternity leave, of which an average of 13 are
paid at 100 percent of last earnings (excluding additional paid parental
leave).[106]
The Heymann and Earle study found that 101 countries offered 14 weeks or more paid
leave for new mothers, and 29 guaranteed one year or more.[107]
They found the average duration of paid leave for new mothers in the most
competitive countries was 43 weeks, compared to 25 weeks in the least
competitive nations.[108]

Paternity leave benefits tend to be shorter. Nonetheless,
the combined paternity and parental leaves in many countries are substantial.
For example, Austria, the Czech Republic, France, Germany, and Sweden guarantee
a year or more of paid leave for fathers (paternity and parental leave
combined).[109]
Thirty-one countries offer 14 or more weeks of paid leave to new fathers.[110]

Some countries have non-transferrable portions of leave to
encourage fathers to take time off work (and thus promote equality in care
giving), sometimes referred to as “daddy days” or
“use-it-or-lose-it” leave. Iceland, for example, offers nine months
of parental leave divided into thirds: one-third for the mother, one-third for
the father, and one-third to be split as the parents wish.[111]
Countries that offer leave benefits for fathers for long enough and with high
enough wage replacement have quickly seen take-up increase, especially when the
benefits are non-transferable. For example, close to 90 percent of fathers are
reported to take paid paternity leave in Denmark, Iceland, Sweden, The
Netherlands, and Norway, and at least two-thirds do so in Finland, France, and
Germany.[112]

Policymakers have voiced concern that long maternity or
parental leaves may lower women’s wages. However, this is a minimal risk
when the leave policy fits within certain parameters. Recent research on 22
countries found substantial wage penalties related to motherhood in countries
that offer more than 18 months of leave for new parents, and even more extreme
motherhood wage penalties in countries that guarantee no paid leave for
new parents. It also found that the motherhood wage penalty is lower in
countries that offer about one year of job-protected leave.[113]
Other research has shown that paid leaves of between three and six months have
no or negligible impact on women’s wages, whereas one study found some
wage depression for leaves of nine months or more.[114]
On the other hand, there is also evidence that where longer leaves are
job-protected, gains in women’s seniority and developing job-specific
human capital may compensate for reduced wages.[115]

Benefit Levels

The amount of wage replacement during paid leave varies
widely. The amounts paid are sometimes a flat rate (e.g., the minimum wage),
sometimes a capped percentage of prior earnings, or full pay. The 2010 ILO
report found that 42 percent of the 167 countries reviewed provide at least 14
weeks of leave paid at two-thirds of earnings or more, and 34 percent pay 100
percent for at least 14 weeks.[116]
Heymann and Earle found that 41 countries offer 100 percent of usual wages for
at least some portion of paternity leave.[117]

Financing and Economic
Impacts

Financing for paid leave
can be done in many ways, but the trend in most developed countries is away
from requiring employers to directly pay wages during leave, and toward
establishing social insurance funds (often financed with payroll tax
contributions or through general tax revenues) that employees can access during
leave. This public financing approach helps mitigate discrimination by private
employers in the labor market by reducing the disincentive to hire workers they
consider likely to have children and take leave. Of the countries included in
the 2010 ILO study, 53 percent financed maternity benefits through social
security, 20 percent relied on joint contributions from employers and social
security, and 26 percent required employers to cover the full amount (down from
31 percent in 1994).[118]

The costs of maternity, paternity, and parental leave
relative to population and gross domestic product are modest, even in countries
with generous leave policies.

Public expenditures on maternity leave are estimated to
amount to an average of 0.3 percent of GDP for leave payments in countries in
the European Union and the OECD.[119]

In terms of broad economic impacts of paid family leave, the
Heymann and Earle study found that there is no relationship between
unemployment rates and family-friendly policies like paid leave.[120]
It found that countries guaranteeing leave to care for personal or family
health had the highest levels of economic competitiveness.[121]

IV. Real Families, Real Harms from Work-Family
Policy Failings

The parents interviewed for this report recounted serious
harms related to the meager policy supports for US working families. They
described struggling with the lack of paid leave, and reported negative effects
on their careers, on family finances, or on their children’s health. Many
also confronted inflexible workplaces after leave, including with respect to
requests for flexible hours or reduced schedules, and concerning pumping breast
milk at work.

Many interviewees said that becoming parents (especially
mothers) resulted in curtailed professional development opportunities,
promotions being delayed or denied, and stagnating salaries. The financial
strain on those who took unpaid leave resulted in many families accumulating
debt or resorting to public assistance. These hardships affected parents across
a broad range of economic and professional circumstances.

Empirical studies on the impact of work-family policies,
especially research on having or lacking paid family, have findings strikingly
similar to the experiences of these parents.

Empirical Data at a Glance: Impacts of Paid and Sufficiently Long Leave

Health and Breastfeeding

A 2005 national US study found that taking longer maternity leave was
associated with fewer and less frequent depressive symptoms among mothers:
increasing leave by one week was associated with a six to seven percent
decline in depressive symptoms.

A study of 18 OECD countries covering more than three decades found
that extending the number of weeks of job-protected paid leave was associated with a
significant decrease in infant mortality, but unpaidleave was not. A 10-week extension in paid leave was
associated with a decrease in post-neonatal mortality rates of 4.1 percent,
and unpaid
leave was unrelated to infant and child mortality.

A study of 16 European countries from 1969 to 1994 found that a 50-week
entitlement to paid parental leave was associated with about a 20 percent
decline in post-neonatal deaths and a 15 percent drop in fatalities between
ages one and five.

A 2010 study found that the US could prevent the deaths of nearly 900
infants and save $13 billion dollars per year if 90 percent of mothers
breastfed exclusively for their babies’ first six months of life. Only
43 percent of babies in the US are still breastfed at six months

A study on Canada found that breastfeeding duration increased by over a
month and the proportion of women attaining six months of exclusive
breastfeeding increased nearly 40 percent when paid leave benefits were
increased from six months to about one year in most provinces.

A US study found that women who returned to work full-time within 12
weeks were 14 percentage points less likely to breastfeed than those who did
not.

The California paid family leave program doubled the median duration of
breastfeeding for all new mothers who used it.

Family Economic Security

In families with a new baby, 12.9 percent become poor in the month the
event occurred, increasing to 24.6 percent when a female heads the household.

Approximately 8.6 percent of poverty entries happen when a child is
born, and one out of every five temporary poverty spells for children begin
this way.

In 2000, 8.7 percent of FMLA leave takers resorted to public assistance
due to loss of income during leave.

One study of over 1,700 bankruptcy cases found 7 percent of the debtors
identified the birth of a baby as a reason for filing for bankruptcy.

Health Impacts

Three-quarters of the 64 individuals interviewed for this
report said that they felt the lack of paid leave or inflexible work conditions
was harmful to their or their children’s health. Many mothers said they
lacked time to physically recover from childbirth because they had little or no
paid family leave or sick leave, and could not afford longer unpaid leaves.
Others said their short leaves contributed to postpartum depression. Some
parents said the deficient work-family supports compromised their
children’s health.

Physical Recovery from Childbirth

Many mothers interviewed said they had not physically
recovered from childbirth when they returned to work, especially those who had
Cesarean sections.

Even those women who had a few days or weeks of paid sick
days tended to use them up long before they had physically recovered. Samantha
B. had eight weeks of maternity leave after giving birth by Cesarean section,
with a few weeks of sick and vacation pay from her job assisting formerly
incarcerated individuals. Her health was still poor when she went back to work,
but her employer told her, “You need to be back at the end of eight
weeks, or you may have to look for other alternatives.” Samantha said it
took months to recover from the surgery, and that a longer leave would have
facilitated her recovery. “I had abdominal pains and was still taking
medication [after returning to work],” she said. “I had a minor
infection from the staples. I wasn’t able to stand or walk for long
periods.”[122]
Juliana E., who works in sales and marketing, also had a difficult recovery
from her Cesarean section in 2009. She returned to work eight weeks after the
surgery, but needed to take a few sick days shortly after her return. Her
employer took disciplinary action against her for doing so.[123]
Juliana contacted the US Department of Labor about her situation, but still
feared she would lose her job if she took any more time off.

Some women had postpartum medical complications but were
either not granted or could not afford more unpaid time off. When Hazel
C.’s second child was born, she took a seven-week unpaid maternity leave.
At six weeks postpartum, she hemorrhaged due to a retained placenta and lost
one-third of her blood. She was weak and anemic and needed more time to
recover, but she needed her income even more. One week later, she was back on
the job at an Oregon government agency. “I was able to work, but
shouldn’t have done so,” she said.[124]
Diana T. was bleeding and in pain throughout her nine-week maternity leave, as
well as after returning to work at a health insurance company. “I had the
placenta left in me,” Diana said, adding:

I was in pain and bleeding excessively. I was bleeding at
work because they pressured me to come back in. I went back to work in June,
and a week after that I had emergency surgery to have the placental polyps
removed. I had another surgery right before I went back, a D&C [dilation
and curettage, involving the surgical removal of part of the lining of the
uterus], and I had no time to heal. I wanted a week off, but that was denied. I
went back to work three days later.[125]

Health care workers in several states told Human Rights
Watch that they see many patients return to work earlier than is medically
advisable after childbirth because they do not have paid family or sick leave,
and cannot afford or are not entitled to unpaid leave. For example, Doctor Cat
Livingston, a family medicine clinician teacher in Oregon, said,
“I’ve seen lots of cases where women go back to work after two
weeks. It’s really inadequate. Healing usually takes six weeks.”[126]

Lack of paid leave for partners also impacted the postpartum
health of mothers interviewed. Many felt their physical recovery from
childbirth would have been immeasurably helped if their partners had more, or
in some cases any, paid time off. Alyssa I. had Cesarean sections with both her
children, now four and 21-months, and her husband had just a day or two off
both times. She said:

Having to manage two kids while recovering from major
surgery was physically very difficult. If my husband could have had at least
two weeks, I’d probably have felt better at four weeks…. I think it
would have allowed for some basic recovery. It’s major surgery, and your
body is not anywhere near ready, physically or emotionally, to handle all the
challenges [alone].[127]

Among same-sex parents interviewed for this report,
virtually none of the partners who did not give birth could take family leave,
whether paid or unpaid. This made the biological mothers’ recovery all
the more difficult. Marissa R.’s twins were born prematurely at 32 weeks,
and she had Cesarean section complications. Her wound got infected and burst
open, requiring emergency surgery. For several months, Marissa had to visit a
clinic three times a week to have old gauze removed and new gauze inserted into
the wound. She was in pain the entire time, and had to manage virtually alone
with her toddler and premature twins. “[My partner] was not able to
support me for any of it…. She had to continue working,” Marissa
said.[128]
Even though Marissa and her partner were legally married in California, their
home state of Arizona did not recognize them as spouses, so her partner’s
employer refused to grant FMLA leave from her job as a physician. She could not
take vacation days because her employer requires long advance notice for such
leave, and the premature births were not anticipated. Their children were all
born on weekends, and by Monday Marissa’s partner was back to work. When
Marissa had surgery on the infected wound, her partner could visit for only a
few minutes during rounds at the hospital. Marissa recalled:

It was incredibly stressful.... We had three kids, two were
preemies [premature]. I had to feed them every two to two and a half hours
around the clock. I had to do it all solo. The three weeks in the NICU [Neonatal
Intensive Care Unit] were stressful…. Seeing our babies with the
monitoring wires attached was stressful, and I really couldn’t turn to my
wife for support because she had to work…. It was emotionally hard not
being together to go through this process, not having someone to lean on. If
she wasn’t at work, it would have given us some time to be together and
to go to the NICU and be with the babies. Even a week off for her to be home to
help me recover and a week to get us on our feet would have been awesome.[129]

Paige V., who had an exhausting labor and then Cesarean
section, said her partner, a physician’s assistant, was not able to take
FMLA leave to support her during her painful recovery since they were same-sex
partners. “For the physical recovery, it was hard not to have my partner
home for more time,” Paige said. “She was out a week, but I was
still in the hospital for a few days. Then I was home alone with the baby
crying, and I couldn’t walk. It was awful…. It was the most
difficult period of my life.”[130]

Leila M., also in a same-sex relationship, said she was
distressed that she could not support her partner and care for their new baby
by taking FMLA leave from her job as a high-school guidance counselor.
“It was terrible,” Leila said. She added:

The baby had reflux and was in and out of the emergency
room…. I would have loved to be home at least the first month. It would
have been great to have two months. Since I didn’t have the baby, I
didn’t have the physical issues, but I would have liked to have been
there. We had a lot of doctors’ appointments to deal with because of his
stomach…. He’d scream for three hours then sleep for 20 minutes. He
vomited up every bottle for the first few weeks. It was a month before he slept
more than 20 minutes at a time.[131]

Even where physical recovery from childbirth was not as
difficult, families with same-sex parents struggled with exclusion from FMLA
leave. When Amelia S. and Maya T. had their first baby, Amelia’s employer
refused to grant her FMLA leave, and only begrudgingly let her take one week of
accrued sick time from her job as a college professor. Amelia said:

I have a tremendous sense of loss. I felt very torn….
It was horrible to go back after one week. I had a hard time focusing. Maya had
problems, the baby had reflux. We felt robbed and scared…. I was torn
because Maya was home with our screaming kid, and I was literally down the
block.[132]

For the few biological mothers we interviewed whose partners
did have paid paternity, parental, or family leave, their partners’
ability to stay home and support them made an enormous difference. Jessica
F.’s husband, who worked for a finance company, had one month of
paternity leave paid by his employer at 60 percent of his salary, which she
said eased her recovery from a Cesarean section.[133]

Postpartum Mental Health

Lack of work leave when a new baby arrives can have mental
health implications. In 2005, a national US study found that taking longer
maternity leave was associated with fewer and less frequent depressive symptoms
among mothers: increasing leave by one week was associated with a six to seven
percent decline in depressive symptoms.[134] Another study
published in 1996 found that a maternity leave of six weeks or less, when
combined with other factors such as a troubled marriage, was a risk factor for
depression among mothers. Leaves of 12 weeks or more were associated with lower
levels of depression.[135]

Postpartum mental health disorders, such as postpartum
depression, afflicted a dozen mothers who were interviewed.[136]
Some firmly believed that the depression stemmed from, or was worsened by, the
financial strain of unpaid leave, the emotional toll of going back to work too
early because they needed income or their employers refused longer leaves, or
inflexible or hostile workplaces upon return.

Diana T. had postpartum depression after both her children
were born. It was more severe the first time, when she was 18 and worked
full-time at a retail store. When Diana returned to work after an unpaid
six-week maternity leave, her employer threatened to replace her when she asked
to use her accrued sick days for her baby’s appointments for asthma and
suspected cystic fibrosis. They switched her schedule frequently, giving her
night shifts with little notice. The combination of a short leave, having no
pay during leave, her sick baby, and her employer’s poor treatment took a
toll on Diana, who became depressed.

I got to the point where I despised [the baby] for a while.
I didn’t feel great. I was so stressed about trying to make money, having
a job with a bunch of jerks, and [the baby] was sickly. I didn’t have
time for doctor visits. I was despising her because she was so sick and I had
to take her to the doctor and I didn’t have time off of work.[137]

Diana never got treatment for her depression because she had
so little ability to get time off work. She also had no health insurance and no
means to pay out for pocket for therapy. She said:

At that age [having paid family leave] would have given me
more self-confidence and I could have provided better for my child….
Having paid time off would help for a single mother with depression.… At
the time it would have made a world of difference because I wouldn’t have
been so frustrated and upset with the baby.[138]

Postpartum mental health problems affected several mothers
when their partners, who often had very little time off, went back to work.
Maria J. had postpartum depression for three months, starting shortly after the
baby was born. She had a traumatic three-day labor and an emergency Cesarean
section, and she and the baby were in the hospital for a week. Maria’s
husband could take only a few days off from his carpentry job while she and the
baby were hospitalized and none when they went home. Maria was in pain and exhausted,
and felt alone. She said:

My husband didn’t have any more days off, so I had to
adjust myself…. Even having my husband home for just like a week would
have made everything better…. The baby needed so much, and I
couldn’t take a break. I got postpartum depression…. I was alone.
It would have made a huge difference [to have my husband home on paid leave].
More time would help, but even just a week. I think there should definitely be
paid leave.[139]

Maria’s husband, William K., said the family was in a
financial crisis because their private insurance would not cover all the birth
costs, leaving him no choice but to work. They had a $10,000 hospital bill
which they had to put on credit cards, and ultimately declared bankruptcy.
“We were financially digging a hole because of the insurance not covering
us, which meant I had to have money coming in…. I felt helpless,”
William said.[140]

Caitlin A. said she had postpartum psychosis when her
husband went back to work.[141]
She had a grueling labor and then a Cesarean section, and her wound was
infected. Her husband took two weeks of vacation leave. “Before my
husband went back to work, it was more the regular baby blues,” Caitlin
said. “It wasn’t the same as when he went back to work and I felt
so lonely and so alienated. I think 12 weeks [leave for partners] is needed. I
needed help. It was really, really, really tough.”[142]

Partners of women with postpartum depression told Human
Rights Watch that not having sufficient paid family leave or work flexibility
to care for their partners was deeply upsetting. Tom H., whose wife was
hospitalized for a week with psychotic postpartum depression a few months after
childbirth, took some sick time when her illness was at its most extreme, but
wished he could have had more time. “Having family leave for when [my
wife] got sick would have been good. It was pretty stressful,” he said.[143]

Medical doctors told Human Rights Watch that the lack of
adequate paid leave after childbirth can contribute to postpartum depression.
Dr. Cat Livingston said, “When you go back to work early you may not have
enough time to bond. You’re so exhausted. A number of women seem to have
postpartum depression from this,” she said.[144]
Dr. Elizabeth Steiner Hayward, a physician and president-elect of the Oregon
Academy of Family Physicians, said there was “no question” that
short and unpaid family leave contribute to postpartum depression. She said she
has “seen increased stress levels and increased anxiety” for those
with unpaid family leave and early return to work after childbirth.[145]

Health Impacts on
Parents Prior to Birth or Adoption

Health problems related to or exacerbated by inflexible
workplaces and little or no paid leave can start even before a baby is born or
adopted. Both biological and adoptive parents told Human Rights Watch that they
had neglected their own health and wellbeing in order to save whatever paid
sick days they had for when the baby arrived.

Amanda H. had high blood pressure and borderline gestational
diabetes when pregnant with her son, but kept working in order to save her sick
pay for her maternity leave. “My health care provider urged me to stop
work earlier than I did,” she said. “I knew I had only so many days
of paid [sick] leave and wanted to keep them for when the baby was there.”[146]
Julia P. did not take a day off from her job at a university for two years
prior to adopting in order to have some paid leave after the adoption, despite
her own chronic health problems.[147]
Christina S., a psychologist, said:

If I wasn’t feeling well I pushed myself to save the
time. During my pregnancy it was a huge concern not to take time off ahead of
the birth…. Paid leave would have reduced my angst about if I were sick
or my family was sick.[148]

Some parents interviewed had no paid sick leave to save.
Hannah C. worked at a bank that limited her to about 38 hours per week, just
under the level for paid leave benefits. She was nauseous and vomited for nine
months, but never took a day off throughout her pregnancy. “They put me
at the end of the [teller] line closest to the bathroom. I could take two steps
to throw up, refresh my face, and come back out,” she said.[149]

Some parents hoped to stockpile paid sick days but had
health issues so severe during pregnancy they had to take time off. Olive D. had
complications at 28 weeks of pregnancy and was on bed rest for five weeks.
“We set up a plan for how to [have a baby] and maintain solvency,”
she said.[150]
But the plan involved her sick leave pay, which was nearly wiped out when she
was on bed rest, resulting in almost wholly unpaid maternity leave.

Child Health

Parents’ ability to cope with health problems of
newborn or newly adopted children, as well as to obtain standard immunizations
and health check-ups for their babies, can be compromised when parents have
short or unpaid leaves or inflexible working conditions. This relates to many
factors, such as parents having inadequate time or money for health care,
losing insurance during unpaid leave for those not covered by the FMLA, and
having too little time for bonding and developing skills to care for babies.

Cross-national studies have found that extended parental
leave is associated with lower infant and child mortality.[151]
A study of 18 OECD countries covering more than three decades found that extending
the number of weeks of job-protected paid leave was associated with a
significant decrease in infant mortality. It found that a 10-week extension in
paid leave was associated with a decrease in post-neonatal mortality rates of
4.1 percent.[152]
By contrast, it found that unpaid leave policy was unrelated to infant
and child mortality, positing that losing pay made leave impossible for many
parents. Another study of 16 European countries from 1969 to 1994 found that
more generous paid parental leave reduced deaths of infants and young children:
a 50-week entitlement to paid parental leave was associated with about a 20
percent decline in post-neonatal deaths and a 15 percent drop in fatalities
between ages one and five.[153]

Empirical studies have also examined how infant health care,
including well-baby visits and immunizations, is affected by leave length. One
study published in 2005 compared children whose mothers were still on leave 12
weeks after childbirth with those who returned to work earlier, and found that
short leaves had a negative impact, albeit small. Children whose mothers
returned to work earlier were 2.4 percent less likely to receive well-baby care
and 3.4 percent less likely to receive all of their immunizations than children
whose mothers took more than 12 weeks of leave.[154]

Among the parents interviewed for this report, most
managed—with difficulty—to have timely immunizations and health
checks for their babies. For some, this caused friction with their employers.
Diana T., whose daughter had severe asthma and suspected cystic fibrosis, said
her employer threatened her when she took time for doctor visits. She said:

At work they’d hassle me. They’d say,
‘Well you know, if you really don’t want to work we’ll
replace you. You need to be here. You can’t take so much time off….
They switched me to night work, which is really hard to do with a baby and when
you’re a single parent. Sometimes they switched my shifts and I’d
have to work eight days in a row. I said no, and they’d say I won’t
have a job. My baby was sick, but I had to go in because I needed the job. They
really did bully me into doing things I didn’t want to do. It was much
more than with other people. They knew I was a single mom and needed the job.[155]

Some parents could not manage timely health care for their
children because their employers resisted granting them time off for doctor
visits after short leaves. Andrea N.’s baby had an extreme form of reflux
requiring frequent doctor visits. “It was really stressful to go back to
work at six weeks,” she said. “The problem lasted a long time. We
had six months of stress.”[156]
Andrea’s work schedule as a research coordinator made it difficult to get
to doctors’ appointments, and some visits were delayed as a result.
“Some immunizations came late…. About three times, but no more, we
were late on immunizations,” she said.[157] Mary B. also
delayed her baby’s immunizations due to unpaid maternity leave from her
job as a community health nurse, during which she lost her health insurance.[158]

Medical providers said that many of their patients stop or
delay bringing in their children for health care if they have short periods of
leave or inflexible workplaces. Dr. Cat Livingston, whose family practice
serves many low-income families, said, “Parents may not bring children
for months when they can’t get off work.”[159]
For her low-income patients, the lack of paid family leave was particularly
problematic. “The lack of paid family leave is a reason people make
decisions that can lead to disastrous health consequences,” she said,
adding:

It boils down to people making choices based on finances
rather than health. This undermines what I do as a doctor…. We should get
on board with the rest of the developed world. We need to recognize that having
a healthy population means investing in parents and caregivers. This country is
still functioning in the 19th century…. We need policies to maximize
health. We don’t have that.[160]

Dr. Elizabeth Steiner Hayward, physician and president-elect
of the Oregon Academy of Family Physicians, said:

I routinely talked to patients about how much leave they
would take, and encouraged them to take long leaves. They were often confronted
with the financial realities of their lives. They’d say, ‘Our
family can’t afford more than four weeks off. [161]

The parents interviewed who did have substantial paid leave
after childbirth, such as Valery Y. with her four-month partially paid leave,
said this facilitated health visits. “It was a help to have time
off,” she said. “It was nice to be able to know I could make
appointments when they were available.”[162]

Children’s Severe Illnesses

Paid family leave and workplace flexibility for working
parents are important for all families, but they are essential for families
with severely ill babies or children.

Research shows that parental presence positively affects
recovery time and reduces anxiety for ill children. Parents with paid leave are
at least five times more likely to care for their sick children than those
without.[163]
A series of studies have demonstrated faster recovery times when parents are
present, and one study found that having parents room-in with hospitalized
children reduced hospital stays by 31 percent.[164]
Parental presence is linked to a lower incidence of cross-infection, a decrease
in post-operative complications, less stress for the child, less anxiety for
parents, and improved post-discharge care.

Several parents interviewed for this report had premature
babies with major health problems, and some had children who developed serious illnesses
a few months into life. They described the extraordinary pressure of trying to
retain their jobs, keep their family financially afloat, and care for their
ailing babies, and said having a few months of paid family leave or flexible
schedules upon return to work would have helped immensely.

Kimberley N. worked for a charitable organization and had
planned a six-week maternity leave. Her son was born with hypopituitarism, a
life-threatening condition in which the pituitary gland does not produce hormones
needed to regulate the organs. He was in critical condition when born, and
needed constant monitoring. She ended up taking a 12-week leave, most of it
unpaid after a couple of weeks of accrued sick and vacation pay. She said:

If I had had paid leave it would have been so much better.
I worked and we saved and saved. Had we not put money away we would have been
in really big trouble. Twelve weeks [of pay] would have been such a tremendous
help. Had we not had money in savings, it would have broken us. We used it all.[165]

Julia P. adopted a baby girl, now two years old, who was
born four months premature. She weighed just 1.5 pounds and had to be
resuscitated when she was born. Julia saved her vacation and sick leave for two
years ahead of the adoption, and between that and the partial pay provided by
her employer for parental leave, took seven weeks of paid leave. Julia’s
baby was on oxygen and a cardiac monitor for almost four months after coming
home, and could not attend day care. Julia rationed her vacation time down to
the hour to coordinate tag-team child care with her partner. “It was a
narrowing funnel of extreme pressure on my vacation time, and I was using it up
by being off several afternoons a week,” Julia said. Frequent doctor visits
added to the stress. Julia said:

I’m trying to hold it all together…Over the
past year, we’ve had 191 doctor appointments. I’m trying to keep my
marriage together, to keep my wife having a job, and me keeping a job.[166]

Although Julia’s boss was flexible about her work
schedule, she wishes she could have simply had more than seven weeks of leave.

A few interviewees did have paid family leave that allowed
them time to be with their severely ill babies, and felt grateful and loyal to
their employers because of it. Jasmine K.’s first son was born six weeks
early and spent weeks in intensive care. She was fortunate: her employer, a
union, paid her full salary for three months of maternity leave, partly from
accrued vacation leave, but mostly through parental leave pay. “I just
moved into the hospital for two and a half weeks,” she said. “I
think I left the building once.”[167] She also had
three months of paid maternity leave with her second child, and her employer
now offers all employees full pay for twelve weeks as a parental leave benefit.

Jasmine’s second child was diagnosed with cancer
(neuroblastoma) when he was six months old. Jasmine again took paid family
leave intermittently for several weeks at a time to manage the treatment.
“I was so blessed to have this job,” she said. “You’d
see those kids there [at the hospital] with no mommy or daddy. They had to work
for health insurance. How sad to see those little babies, and I was there with
mine 24/7.”[168]

Several medical professionals said that the lack of paid
family leave or flexible work schedules was devastating for families of
hospitalized babies and children. One nurse practitioner said it was common at
her hospital for parents to be absent:

It happens all the time. If the baby is premature, and the
family has no savings or is low wage, they have to go back to work so they can
have time when the baby goes home…. We had a little baby born with a
birth mark taking up half of her body…. She was in the NICU for at least
a month, up to two…. The mom tried to be there as much as she could, but
the dad had to work, and someone had to take care of the sibling. The baby
wasn’t doing very well. She had multiple surgeries to quell the things
that were happening. She ended up dying. If you have a baby, whether they live
or die, you want to be there…. No one was there to hold their poor little
sweet baby….

It’s just accepted that two parents can’t be at
the bedside when a child is in the intensive care unit. Some people don’t
seem bothered by it, but it does bother me. Fifty percent of our patients have
their parents away…. I see this all the time in the pediatric ICU….
For the lower wage workers, the employer would be pissed off if they took just
two days off…. I remember a gorgeous 10-month-old baby boy, and neither
parent was there…. This was at the height of the baby’s stranger
anxiety. He had a million tubes coming out of him, multiple IVs, arm boards,
and he was restrained. It broke my heart that he couldn’t have a parent
with him…. We put toddlers in what we call a cage. It’s a crib with
a top so there’s no way for them to jump or crawl out. We put them in
there if the parents can’t be there.[169]

Emotional Health of Adopted Children

Adoptive parents said that the lack of paid leave at the
point of adoption made it difficult to manage their children’s emotional
needs during the transition to their new homes. Adoptive parents often confront
not only the lack of paid family leave, but also huge adoption fees that put
unpaid leave out of reach. Ted M., who works in product marketing, said:

Money was a factor in not taking more leave. As a single
person with a lot of expenses around the adoption, unpaid leave would have been
an additional [hardship]. You’re in the range of $30,000 to $50,000 for a
foreign adoption, and I was on the upper end. I had debt already, and was then
taking on child care. Babies are not cheap, and I didn’t want to take
unpaid leave and incur more costs.[170]

Ted adopted his son, now three years old, from Guatemala. He
wanted to take more time off when he brought his son home but had no more
accrued leave. “I would have liked to have done more,” said Ted.
“I was adopting a child internationally, bringing him to a new
environment with a different language, a new house, new child care, new faces,
everything.” Ted said his company’s policy treated adoptive parents
differently from biological parents, giving them a small cash benefit but no
time off. He said:

You need time to get them adjusted, just the same as any
other family….You may not have the same [physical] recovery… but
you need the bonding time, to get a routine set, and to get child care
set…. Paid time off to get this sorted out just seems fair.[171]

Adoptive parents who are not eligible for FMLA leave may
have no time off at all to help their children adapt to their new lives.
Theresa A. has three adopted children. For the first two adoptions, Theresa
could not take any leave from her work as an attorney. For the first adoption,
she travelled to Russia to collect her son, and worked while there. “I got
home late Saturday night. I got my new son to bed at 5 a.m., and by 11 a.m. I
was working. The next few weeks I did a combination of working at the office
with my son and working from home. Within one month I had him in day
care,” she said.[172]
Theresa needed more time to help her son, 29-months-old at the time, adjust and
to seek specialist care for his eating disorder and developmental delays. But
her small firm was not required to give her FMLA leave.

My son had such a fragile attachment…. He was completely
shut down. He was a tough kid. He was very bonded to me, and terrified to be
away from me. It would take four people at his day care to hold him so I could
leave. It was traumatic for him and for me.[173]

When Theresa got custody of her second child, she could only
take a half day off. She said, “He came to us as a result of an adoption
that didn’t work, and he had 13 foster placements before that. He had
severe behavior problems…. If I had leave time I wouldn’t have
panicked…. It would have been a lot less stressful.”[174]
In contrast, when Theresa adopted her third child, her employer gave her a
three-month, partially paid leave, which Theresa said was vital for all of them
to make the emotional adjustment to having a new baby. “It would have
been a disaster not to have leave,” she said.[175]

Lack of Health Insurance during Leave

The precarious health insurance situation for many US
workers impacts their ability to take leave to care for a new baby or sick
family member. The FMLA requires that employers maintain health benefits during
family leave, but about half of the workforce is not eligible for FMLA leave.
An enormous number of workers lose not just income, but also health insurance,
if they take non-FMLA leave or leave longer than the 12 weeks allowed under the
FMLA. This can endanger the health of both children and parents.

Mary B. did not qualify for FMLA leave after giving birth to
her first child because she had been at her nursing job for less than one year,
nor after her second child since she worked part time. At the time of the
interview, the family—including their toddler and four-month-old
baby—was without health insurance while she was on leave, as they could
not afford the premium. Mary was worried:

I’m trying to get by without health insurance during
leave. Health insurance is the biggest struggle…. Even though I’m a
nurse and can make fairly good decisions about when to bring the kids in, it
adds stress. We have no feeling of safety…. My toddler got the H1N1 flu.
I hoped the baby wouldn’t…. I’ve been delaying check-ups. The
baby is due for her four-month check-up. I’m not doing it until I have
insurance. Immunizations will be delayed a bit. They do DTaP, Polio, Rotavirus,
and Hib [vaccinations] with the four-month visit, and she didn’t get
them.[176]

Several parents took shorter leaves than they would have
liked in order to maintain health insurance. Amanda H. said she took three
weeks off after giving birth by Cesarean section, then worked six hours a week
for a few weeks, and resumed full-time work when the baby was six weeks old to
maintain her insurance. She said, “At six weeks I went back to work
because I didn’t want to lose my health benefits and I needed to be
paid.”[177]

Breastfeeding

Breastfeeding may be curtailed or abandoned when a mother’s
leave after childbirth is very short (which often results from lack of pay).
Breastfeeding also suffers when employers forbid or offer inadequate conditions
for pumping milk or breastfeeding babies at work, refuse flexible scheduling to
accommodate nursing workers, or display hostility toward lactating workers.
This in turn can impact children’s and mothers’ health and public
health generally. Some progress was made on legal support for expressing breast
milk at work through the 2010 health care act, but the new protections do not
cover all workers, and it remains to be seen how employers will implement the
new requirements.

The American Academy of Pediatrics (AAP) recommends
exclusive breastfeeding for six months and continued breastfeeding for at least
the first year of life.[178]
According to the AAP, benefits of breastfeeding include decreased incidence or
severity of many infectious diseases, reduced infant mortality, decreased rates
of sudden infant death syndrome, reduced incidence of diabetes, lymphoma,
leukemia, Hodgkin disease, obesity, asthma, and other diseases, and slightly
enhanced cognitive development.[179]
Maternal health benefits include reduced postpartum bleeding, decreased risk of
breast and ovarian cancer, and possibly decreased risk of osteoporosis, among
other things.[180]
A 2010 study found that the US could prevent the deaths of nearly 900 infants
and save $13 billion dollars per year if 90 percent of mothers breastfed
exclusively for their babies’ first six months of life.[181]
Unfortunately, only 43 percent of babies in the US are still breastfed at six
months.[182]

New research on California’s paid family leave
insurance program shows positive impacts on breastfeeding. The program doubled
the median duration of breastfeeding for all new mothers who used it, from five
to eleven weeks for mothers in “high-quality” jobs and from five to
nine weeks for those in “low-quality” jobs.[183]
It also increased the likelihood of breastfeeding initiation among women with
“low quality” jobs: 92.5 percent of those who used the program
initiated breastfeeding, compared to 83.3 percent of those who did not get paid
leave.[184]
Similarly, a study on maternity leave and breastfeeding in Canada showed a
sharp jump in breastfeeding duration when Canada increased paid leave benefits
from six months to about one year in most provinces. The study found that
breastfeeding duration increased by over a month and the proportion of women
attaining the public health benchmark of six months of exclusive breastfeeding
increased nearly 40 percent.[185]
A study on the US found that women who returned to work full-time within 12
weeks were 14 percentage points less likely to breastfeed than those who did
not.[186]
Another study in southern California showed that a maternity leave of six weeks
or less resulted in mothers being four times more likely to not establish
breastfeeding and three times more likely to cease breastfeeding early compared
to women who did not return to work at that time.[187]

Virtually all biological mothers interviewed for this report
said they tried to continue breastfeeding after returning to their jobs, and
most tried pumping at work. A small number had private offices in which they
could pump, hygienic conditions, refrigerators to store milk, reliable break
times, and supportive co-workers and bosses. But several dozen said they
struggled with one or all of these factors.

Some women said breastfeeding was not solidly established
before they returned to work, and although they tried to pump, the start of
work signaled the end of nursing. Sarah O. was a graduate student teaching
college courses and waitressing when she had her first baby. She tried to
breastfeed, but the baby was not nursing reliably when Sarah returned to work
three weeks after childbirth. Pumping did not work due to space and time
constraints. “It was very difficult,” Sarah said. “I was
working two jobs, and had no office at the time…. [Pumping] was time
consuming, and I didn’t produce much. I probably did this a month. I couldn’t
pump at my waitress job. There was no place to go there, and it wasn’t a
good atmosphere.” She stopped nursing when the baby was a few months old.
“Ideally I would have liked to [breastfeed] at least a year if not
longer. I was most traumatized by that with the first one. I really wanted it
to work.”[188]

Physical conditions for pumping milk were dismal for many
women interviewed. They described pumping in bathrooms, copy rooms, shared
kitchens, bulk closets, a gymnasium, a phone booth, an equipment storage room,
a photography studio, a mail truck, and an exam room. In some cases, pumping
spaces employers designated were so uncomfortable or unhygienic that women cut
short breastfeeding. After an eight-week maternity leave, Samantha went back to
her job with an organization that helps formerly incarcerated people find work.
Her employer said the only place she could pump was a heavily-trafficked public
restroom with two stalls and no electric outlet. Samantha said, “I nursed
until I went back to work. There was no private place to pump. I stopped
because of work. I wanted to continue for six or eight months, or until the
baby got his first teeth.”[189]
Paula R. returned to her job five weeks after her daughter was born. She had
hoped to nurse for six months, but found pumping at her law firm’s
bathroom too difficult, and stopped at six weeks.[190]

Some employers offered no space for pumping whatsoever.
Diana T. took a six-week maternity leave from her job at a store, and stopped
nursing a few weeks after her return. She said:

I stopped at two months because of the difficulty between
work and getting it [pumping] done…. I had no way to go anywhere to get
milk. It was very discouraging. Breastfeeding would have been best for [the
baby]. My work was not adaptable.[191]

She said that if she had been able to pump, she “would
have definitely done at least four months if not the whole first year. Pumping
was not in any way encouraged.”[192]

One woman told us that the lack of pumping accommodation at
work was a major factor in deciding to quit her job. Lori M., who worked for a
non-profit health organization, said, “Part of the reason I wanted to
leave my job is that there’s no place to pump. They said I could use a
utility closet.”[193]

Critical attitudes of employers and coworkers also defeated
some women’s attempts to pump milk and continue breastfeeding. Carolyn J.
said that when she returned to work as a teacher after a six-week maternity
leave, she had to pump in a room with a copy machine and a refrigerator.
“It took the administration four days to get me a space to pump,”
she said. They told her she should pump in a space used regularly by other
staff. She said her colleagues “are angry because they can’t get
coffee because I’m pumping.”[194] She pumps less
often than she would like, and has breast pain by the end of the day. Anita R.
also faced negative workplace attitudes about pumping:

When I returned to work after my second [baby], my employer
was frightened to even think about a breast pump. She was horrified. She was
like a deer in the headlights about it. It was such a pain. It’s hard to
pump because I don’t take a break for lunch. I get comments like,
‘you have to be pumping to get a break around here!’[195]

All of the health care providers interviewed for this report
stressed that paid and sufficiently long family leave as well as work
accommodations for pumping are critical for breastfeeding. Dr. Cat Livingston
said, “Sometimes we see them after one or two weeks go back [to work].
This is a critical time for breast pain. If you’re going back to work in
this painful time, it’s much less likely you’ll breastfeed. Lots of
employers have bad facilities for pumping breast milk. Lots of people do this
in toilet stalls…. This may rapidly decrease how much women are willing
to breastfeed.” Similarly, Dr. Francis Biagioli told us, “I see a
lot of stopping of breastfeeding when mothers go back to work…. My
patients go back to work sooner when they don’t have paid leave….
Almost all of the women I see who go back to work give up breastfeeding within
a month or two.”[196]
Dr. Elizabeth Steiner Hayward, president-elect of the Oregon chapter of the
American Academy of Family Physicians said:

We know that women who stay home longer breastfeed longer.
This has substantial health implications for the mother and baby, and in the
long term for public health. If every baby in the country was breastfed for six
months, we’d have a substantial decrease in autoimmune disorders and
obesity problems…. Even though the FMLA covers 12 weeks and even though
employers must give breaks to pump, you still see women giving up
breastfeeding.[197]

Women who had longer maternity leaves told us this helped
them establish breastfeeding, and that positive workplace conditions for
pumping helped them continue. Valery Y. had a four-month maternity leave, with
three months paid through the California family leave and a temporary
disability insurance program and one month paid with accrued sick time. She
initially had trouble getting her baby to nurse, but by about five or six
weeks, it was going well. “The leave I had was helpful because by the
time I was back to work, she was eating and sleeping,” Valery said.
“If I went back super early, with breastfeeding I would have been more
stressed. I pumped at work…. They had a great space and gave flexibility
to take 15 minutes twice a day.”[198]

Financial Hardship of Unpaid Leave

Wage replacement during leave has obvious benefits for
family finances. Research on poverty and bankruptcy related to childbirth
suggests that paid family leave could help avert or minimize family financial
crises.

According to a 2008 report, approximately 8.6 percent of the
instances when households enter into poverty in the US happen when a child is
born, and one out of every five temporary poverty spells for children begin
this way.[199]
The report also found that in families with a new baby, 12.9 percent become
poor in the month the event occurred, and this increases to 24.6 percent when a
female heads the household.[200]
When the 2000 FMLA survey was done, 8.7 percent of leave takers overall
resorted to public assistance due to loss of income during leave.[201]
Paid leave may also help some families avoid bankruptcy, which for many
families happens around childbirth. One study of over 1,700 bankruptcy cases
found 7 percent of the debtors identified the birth of a baby as a reason for
filing for bankruptcy.[202]

More than half of the parents interviewed said they faced
significant financial hardship when their children were born or adopted due to
lack of paid leave.

Difficulty Meeting Basic Needs

Some interviewees had trouble meeting their monthly expenses
and paying for basic needs immediately after childbirth or adoption. Christina
S. saved money by working extra hours while she was pregnant, but struggled
financially when her child was born:

It was very stressful. We used a food bank when we had my
third son…. [Paid leave] would have reduced my worry about finances, and
whether we were going to make it. It would have given some security, emotional
and financial.[203]

Patricia D. had an eight-week leave from her job at a retail
store when her son was born, three of them with vacation and sick leave pay.
She said, “By the end of my leave, we were deciding do we pay the light
bill or pay for formula…. It’s not like parents want a month in
Maui. A baby has been born. You need to have money coming in. You can’t
just rely on vacation and sick time.”[204]
Ruth A., a teacher, took a three-month unpaid leave when her child was born,
and had to rely on her husband’s parents for financial support. Ruth
said: “We barely broke even every month…. We changed our lifestyle
completely…. We used heat less, and bundled up in the house.”[205]

Losing income during unpaid family leave was particularly
hard on single parents. Diana T. is the single mother of two girls, the first
born when she was 18 and living with her parents. Diana had no paid leave after
her first child was born, and 60 percent of her salary (of less than $30,000
per year) for six weeks when her second child was born. After her first baby
was born, she said: “I had nothing…. I had no money for food,
diapers, or clothes. I didn’t have a room in [my parents] house. I lived
in the dining room behind a sheet. We put the crib up there.”[206]
Although she had partial pay after her second child was born, the costs of having
a new baby were high, and she incurred credit card debt. She also struggled to
pay rent. A few months later, Diana was homeless.

Juliana E., a single mother of an infant, and had an
eight-week leave with partial pay. She said, “I did the math to see [if I
could take a longer leave]. I could only do eight weeks because I
couldn’t pay the bills.”[207] Losing some of
her income during this period forced her to seek financial help from family and
friends, and she was late on car payments. She went on food stamps and welfare
for a few months. She said that having consistent pay during maternity leave
would have helped her avoid falling behind financially.[208]

Costly health insurance or COBRA premiums during unpaid
leave were a major burden for those not covered by the FMLA. Isabella V. took a
six-month maternity leave from her teaching job, much of it unpaid, and had to
pay $3,000 to $4,000 over a few months in COBRA premiums. Between that extra
expense and losing her income, Isabella said:

We couldn’t pay the mortgage and buy food…. Our
pediatrician suggested WIC [the Women, Infants and Children’s government
assistance program]. I qualified for that and food stamps. It helped not to
have to worry about food…. Having a little extra vegetables and milk was
such a big help. We had already cut everything out of our budget.[209]

Many parents interviewed had saved money ahead of their
leaves, but still struggled. Saving money was difficult for those with lower
incomes, and for those with other children and childcare costs. Helen N. and
her husband saved money throughout her second pregnancy, but it was not enough
to enable a longer leave or financial security. She took seven weeks off,
unpaid, then began working in a temporary nursing position without benefits.
“I went back to work because we needed the money,” she said. Her
parents and in-laws helped them financially, including through a debit account
for groceries. “Without help from our parents we would have been
foreclosed on long ago,” Helen said.[210]

The fortunate parents who did have paid leave said wage
replacement made longer leaves feasible. Valery Y., who had a four-month
maternity leave partially paid through California’s family leave program,
said:

Wage replacement … definitely made me more
comfortable. It helped knowing when we were about to pay day care, during leave
we could pay the bills. Psychologically it helped. I was taking time to do what
was important, but by being paid I felt a connection to the work world. It was
very, very, very valuable to have this…. If I didn’t have paid
leave, most likely I would have chosen to go on a shorter leave. We would have
been hard pressed to take unpaid leave. It would change my thinking.[211]

Carmen B. had an eight-week maternity leave fully paid by
her employer, a child-care agency. She said, “[Paid leave] takes a lot of
burden off, not having to worry when you’re off work…. If I
hadn’t been paid, I probably would have taken two weeks. I wouldn’t
have been able to live without pay.”[212]

Professionals who work with low-income families also told
Human Rights Watch that paid family leave would make a big difference to their
clients. A manager of a Head Start preschool program serving low-income
families said:

Oh my god, with paid leave I think some could get out of
the cycle of poverty they’re stuck in…. If they could get support
they would do better. You’d see better parenting choices and
opportunities…. Kids could form solid attachments and do better in life.[213]

Debt and Bankruptcy

Two dozen parents interviewed landed in debt after taking
childbirth or adoption leave with little or no pay. Losing income during leave
coincided with new or greater costs from medical expenses, meeting a
baby’s needs, or starting day care. Wage replacement during leave may not
have averted debt entirely for these families, but they all said that having
some wage replacement would have helped enormously.

Many parents incurred credit card debt or defaulted on
credit card payments during unpaid leave after childbirth or adoption. Samantha
B. said, “We went into debt. I put my student loans on deferment….
Both our credit cards went into 30-day or 60-day default. We had some savings
but just to pay the rent. With the cost of getting diapers and necessities for
the baby, I put that first.”[214]
Anna G., a nurse, had a four-week unpaid maternity leave. She said, “We
had to run up our credit cards to stay afloat. We put our groceries on our
credit card.”[215]

Several interviewees said they took out private loans to
afford unpaid leave. Paige V. had a 12-week maternity leave, half of it unpaid.
She said:

This whole FMLA thing is nice, but most people can’t
afford not to be paid for 12 weeks. I think it’s ridiculous…. We
went into debt, and couldn’t stay out. We couldn’t meet our
expenses. We had to use our credit card and get a loan…. I had to ask my
parents for money, and I think my partner borrowed against her retirement. This
happened at the time of my unpaid leave to cover the six weeks. It was a big
deal not to get that [money] for that time…. We’re still paying off
the debt.[216]

Linda F. also took out a private loan at a high interest
rate to enable her to take an unpaid maternity leave.[217]

Five parents had no choice but to declare bankruptcy due to
debt incurred during family leave, in some instances combined with medical
costs uncovered by insurance. Olive D. and her husband saved money during her
pregnancy, but their son was born prematurely with major health complications.
She ended up taking a longer unpaid leave than planned, and the family went
into debt from the loss of income and thousands of dollars of health care costs
not covered by insurance. “We filed for bankruptcy as a result. It was
such a stressful year,” she said. “Any money that could have come
in [as paid leave] would have helped. If only we weren’t struggling to
pull money out of nothing…. We didn’t want to declare bankruptcy.[218]
Olive noted that government-sponsored paid leave may have been a better deal
for the public than bankruptcy: “The community [taxpayers] paid for it
one way or another,” she said. “They would have spent less on me if
I got paid leave.”[219]

Extra Work to Offset Unpaid Leave

Some parents worked additional hours or jobs to prepare for
unpaid leave and stockpile savings before the baby arrived. Hannah C. worked at
a bank during a pregnancy accompanied by severe nausea for nine months. She
said, “When I was pregnant and learned that I had no paid parental leave,
I felt, ‘How the heck will I pay the bills?’ That’s why
I didn’t stop working. I worked a lot before I gave birth. I used to
nanny as well. So on days I wasn’t at the bank, even though I was sick, I
tried to rack up the money because there would be none for a while.”[220]
Other parents took odd jobs shortly after giving birth to make up for losing
pay during leave. Ruth A. provided day care in her home for several children
during her unpaid maternity leave while also caring for her newborn and
toddler. “I had to do this to pay the bills and buy groceries,” she
said.[221]

Several interviewees said that their partners took on extra
work after their babies were born, leaving the other parent to cope alone with
the newborn. When Linda F. was on unpaid maternity leave, her husband took a
fishing job in Alaska. “To cover expenses, my husband had to go fishing
in Alaska,” she said, adding:

I had no support. He had to make money. It was really
stressful…. If I had [paid leave] in that time my husband could have
stayed with me and the kids instead of going away. When you have kids there is
stress if the partner is away, and he doesn’t bond with the kids.[222]

Career Impacts of
Taking Leave and Becoming a Parent

Some parents interviewed confronted negative workplace
attitudes, and in some cases discrimination, in reaction to their pregnancies,
work leaves, or new family responsibilities. Several said their employers acted
as if they were traitors for becoming pregnant and requesting leave, or as if
working parents were not truly committed to their jobs. As noted in Chapter II,
US law does provide some remedies for employment discrimination, but many
interviewees were unaware of their rights, afraid that seeking a remedy would
endanger their jobs, or, sometimes with good reason, doubted that they had a
sufficiently strong claim to prove discrimination.

Workplace Reactions to Pregnancy

Disclosing pregnancy and
discussing leave with employers was daunting for many parents because they
feared employer bias against workers, especially mothers, with family
responsibilities. Some saw swift negative reactions to their pregnancies. Anita
R. said her employer was “very unhappy” on hearing of her
pregnancy, and within two days cut her hours and pay.[223]
Anita filed a pregnancy discrimination claim, which she later dropped. “I
do need my job,” she said. “Especially being pregnant makes it
harder to find another job.”[224]

In several cases, women felt their employers intentionally
made their jobs more difficult during pregnancy, and seemed to hope they would
quit before taking maternity leave. Diana T. worked at a store while pregnant,
and said, “There was a manager who didn’t like the fact that I was
pregnant. She’d force me to go around and pick things up off the floor.
People had to help me back up. She wouldn’t make any exceptions.”[225]
Charlotte W. said:

I’m a letter carrier, and most of my route is walking.
There are lots of stairs and hills. As I got bigger, I got slower and was more
exhausted. I got a doctor’s note restricting me to eight hours of work a
day…. The first day I brought in the note, [my boss] said I’d
better learn to move fast, and walked away. I had to argue every day to get
help to get my route done in eight hours.[226]

Many women said that the atmosphere at work changed when
they revealed they were pregnant. Sarah O., a college professor, said, “I
was the first in the department that had ever been pregnant. The [chair] said,
‘I hope you’re not having any more!’… He said it in a
laughing manner … but it was half serious.”[227]
Another college professor, Abigail Y., said her employer was bitter about her
pregnancy:

They said I had to figure out how I would teach the class
and keep up my credit hours. I was due the week before Thanksgiving, and was
able to crunch a lot of hours before…. Through the whole [pregnancy] it
appeared and felt like I was causing huge damage to the college, to my coworkers,
and to my career to have a baby…. It was like it was a huge inconvenience
and a problem…. I led a sea kayaking trip [for the university] at seven
months pregnant. There was huge pressure not to drop anything. I carried the
backpack, loaded the sea kayak. I did all of it. I wanted to carry my weight. I
had a difficult labor. I don’t know if it was related to the schedule I
kept.[228]

Several women said their
colleagues’ critical attitude toward their pregnancy was subtle, but
apparent. Leah H., an attorney, said “My pregnancy with my son was in the
middle of a trial. I was tired and nauseous all the time. I had to tell them
when I was six weeks pregnant because I couldn’t carry the heavy
litigation bags. Having to tell them so early was stressful…. It affected
their perception of my performance…. It’s hard to explain, but they
just treat you differently…. I felt I was viewed as someone who
wouldn’t give their all.”[229]
Michelle E., a physician who took a two-month maternity leave, said,
“There was a sense of I was doing something behind their backs, like I
was evil for leaving them in the cold. I felt bad for getting pregnant in the
first place. That was the sense I had.”[230]
As a result, Michelle quit her job.

Workplace Reactions to Taking Leave

Some interviewees also faced workplace hostility when they requested
leave after childbirth or adoption. Abigail Y.’s employer essentially
denied her any maternity leave by forcing her to make up all her teaching time
before the baby was born late in the semester. Abigail said:

The dean said it was imperative that there not be any
perception that I took any maternity leave. I did all the [class] time in
advance…. I probably did at least 50 to 55 hours of additional time
before my ‘leave.’ The whole time they treated it like it was
a problem.[231]

Negotiating leave was particularly challenging for workers
not covered by the FMLA. Maya T. missed the FMLA eligibility cut-off by 40 or
50 hours. She asked for a three-month maternity leave to get breastfeeding
established, but her employer granted only two months, and said she could be
terminated if she did not return then.[232]

Several parents in same-sex marriages or partnerships
endured scathing employer reactions to requests for leave when their partners
gave birth. The employers did not consider the babies of the non-biological
parent to be “family” for purposes of their leave policies (in
violation of the FMLA). Amelia S., formerly a college professor, said her
employer was so hostile to her leave request that she was effectively driven
from her job. Amelia had a federal document verifying that she was the parent
of her baby, though she was not the biological mother, and she pressed her
employer to grant her family leave. They refused. Amelia said:

They hauled me in and told me I couldn’t take
leave…. They said, ‘If you want to take leave you’ll have to
sue us.’ They told me I was expected to be there full time, and if
absent there would be ramifications…. They also told me I wouldn’t
be getting tenure because I had raised a stink. I had unbelievable reviews and
student evaluations. That summer I was getting ready to put together my tenure
documents. They said the board of trustees wouldn’t approve it. I left.[233]

A few women said their employers seemed sure that if they took
maternity leave they would soon quit their jobs, even going so far as to make
permanent hires to replace them. Paula R., an attorney, took just five weeks of
unpaid maternity leave when her daughter was born. But when she returned to
work, her boss had hired another employee and given him Paula’s office.
Her boss asked her to work in the conference room and then to share his office.
“I think once you’ve taken a leave as a working mother you’re
always viewed as a flight risk. Like you’re not really putting your job
first,” she said.[234]

Several women said their male partners also feared taking
family leave due to workplace attitudes about leave-takers, and many took less
than they were entitled to. Paula R. said her husband was entitled to FMLA
leave, but felt it would not look good to take the full leave when their child
was born. “No man had done it and he wasn’t going to be the
first,” she said. “After delivery, he went in to teach
classes.”[235]

Impacts on Promotions,
Salary Increases, and Development

It is difficult to distinguish exactly what leads an
employer to deny promotions, raises, or development opportunities, but some
mothers we interviewed were convinced that having children and taking leave
were the prime reasons they were passed over. Some said that clearer
work-family support policies and better enforcement of anti-discrimination laws
might help diminish bias against working parents when it comes to career
advancement.

Andrea N. said becoming a mother delayed promotions by
several years: “By my third child I could feel a difference. You sort of
like hit the wall. There was one promotion that took two years longer to get
than I would have wanted. My employer never said anything. It didn’t have
to be said.”[236]
Sarah O. said becoming a parent hurt her career as a professor and her
prospects for tenure. “I think just even being seen with my children was
detrimental,” she said, adding:

Most people who work
here don’t have kids, and those who do feel impacts on their career. One
[colleague] told me I shouldn’t put a photo of my kids on my website.
I’m up for tenure, and was told I probably won’t get it. I feel
it’s due to having three young kids…. I think I would receive
tenure if I had no kids.[237]

For Linda F., becoming a mother coincided with being sidelined
from leadership opportunities and promotions in her work as a nurse
practitioner. Linda said, “Even if I’m respected, I’m not
requested to be in positions of power…. There were some promotions I
wanted but people got them who didn’t have kids. I really think
that’s a factor.”[238]

Several women said they
were demoted upon returning from maternity leave, sometimes after requesting a
flexible or reduced schedule. Susan A., a writer and editor, was allowed only a
six-week maternity leave when her son, now a toddler, was born. She was
officially on a part-time schedule when she returned to work, but was given as
much work as full-time employees and clocked full-time hours most weeks. She
was nonetheless demoted and took a pay cut.[239]

Some women said that the act of taking leave led employers
to withhold raises or development opportunities. Judith K., who worked for an
Oregon state agency, had a three-month leave with no pay other than accrued
sick and vacation time. She said:

My boss kept referring
to this great gift [of leave] he’d given me. “You’ve been off
for three months,” he’d say. This persisted for a year
after…. He just felt like he’d done some great service to society
allowing me a three-month unpaid leave. He would make comments. It was frustrating.
I was an awesome employee and he knew it…. They gave pay increases to
others, and felt giving three months off was enough for me. They didn’t
send me to conferences.

People think
you’re not committed to work or a dependable employee. There’s so
much stigma that you’re not reliable because you now have a child. Taking
time off, I worried from a career standpoint. If there were a policy, and
employers expected [family leave], then I’d have easily taken six months.[240]

Derailed Careers

Several women told of career meltdowns directly related to
inflexible workplace policies, including the lack of paid leave and scheduling
flexibility for new parents. Many felt they had no choice but to quit their
jobs, and ended up unemployed or in far less senior, lucrative, and rewarding
jobs. As one interviewee put it, “The economy loses a lot of work power
and a lot of talented women this way.”[241]

Negotiating leave or flexible work arrangements caused some
parents such friction with employers that they quit. Kimberley N. left a senior
position in a charitable organization after they refused to let her work from
home or on a flexible schedule after her son was born with a life-threatening
illness. Shortly after her request and right after returning from maternity
leave, they gave her a terrible performance evaluation, in contrast to years of
positive reviews before. She said:

I was blindsided. Where
did this come from? In my mind I had just given birth and was coping with a new
reality. Coming back to work was ugly. I didn’t feel they helped me
integrate back in. I felt like an outsider. I sucked it up and then quit. My
evaluation was night and day different [from before having a child]…. I
was really pissed at how I was treated. All I did was have a baby.[242]

After a few months, Kimberley found a part-time job at lower
pay and with no benefits, but was laid off when the recession hit. “This
whole scenario has detrimentally impacted my career,” she said. “It
leaves questions on my resume. I can somewhat get around them, but on-ramping
is hard…. There are questions: ‘Where have you
been?’… It makes it harder to get back in [to
employment].”[243]

Other women also left rewarding or high-paying careers for
much lower-level more flexible positions, derailing their financial and career
goals. Abigail Y. quit her job as a professor because the university denied her
maternity leave and scheduling flexibility. She did consultancy work on and off
for a few years, then took a lower-level job at a nonprofit group. This
devastated her family’s finances, and at times they were late on mortgage
payments and close to having their utilities cut off. Abigail said:

I had been teaching at
the college level. This is a dramatic difference. I wasn’t going to be
able to be hired back after four or five years out of teaching…. All this
has really retarded my financial earnings, my pension, and social security. My
annual income dropped significantly. I had to choose to either be a
professional or be the kind of mom I want to be. Losing four years of your career
and starting over is not the most financially sound thing to do.[244]

Victoria G. said her
dream of a publishing career came to an abrupt halt when she had a baby. She
was granted only a six-week leave, and her employer refused the flexible
schedule Victoria wanted to facilitate breastfeeding. Victoria quit her job,
and was deeply disappointed to leave publishing. “By taking this time now
I have to abandon that goal. [Having a baby] has redirected my career
options.”[245] Victoria now does side
jobs, like teaching yoga and working part-time at a bookstore during hours when
she does not need child care.

She said:

If leave policy were set in such a way as allowed more
human time to adapt to babies, giving parents more time to take care of the
child without losing their ability to support themselves, I wouldn’t have
made the same choices.[246]

V. International Human
Rights and Labor Standards

International human rights and labor treaties, as well as
authoritative interpretations of those treaties, address a range of work-family
supports. International law unequivocally promotes paid maternity, paternity,
and parental leave (as well as broader family leave under the right to social
security), non-discrimination against family caregivers, and work-family supports
generally.

The US has not ratified the treaties that most directly
address work-family policy although it has signed several of them, thus
committing to at least refrain from acts that would defeat the object and
purpose of the treaties.[247]

This chapter describes relevant international law and
interpretations not to suggest that the US is in violation of all of these
standards, but rather to show how far out of step US policy is with
international norms.

While ratifying treaties is far from a panacea, it would be
an important step for the United States toward having work-family policies that
respect human rights. The US should, at a minimum, ratify several key human
rights treaties: the Convention on the Elimination of All Forms of
Discrimination against Women (CEDAW)[248]
and the International Covenant on Economic, Social and Cultural Rights
(ICESCR).[249]
It should do so without reservations that would defeat the object and purpose
of the
treaties.

Rights to Paid Leave

Several international human rights and labor treaties
explicitly call for paid maternity leave. In the decades since these treaties
were adopted, expert bodies have interpreted these provisions as also calling
for paternity and parental leave, and for them to cover leave in connection
with adoption. The clearest provisions are in CEDAW, the ICESCR, and
International Labour Organization Convention No. 183:

CEDAW provides in article 11(2)(b) that
states parties “shall take appropriate measures … [t]o introduce
maternity leave with pay or with comparable social benefits without loss of
former employment, seniority or social allowances.” The Committee on the
Elimination of Discrimination against Women (the CEDAW Committee), in dozens of
concluding observations from the past few years alone, has encouraged
governments to enforce maternity, paternity, and parental leave policies,
ensure that they cover both the private and public sectors, and increase
incentives for men to take paternity leave.[250]

The ICESCR states in article 10(2) that
“Special protection should be accorded to mothers during a reasonable
period before and after childbirth. During such period working mothers should
be accorded paid leave or leave with adequate social security
benefits.”

International
Labour Organization Convention No. 183 concerning Maternity Protection
(revised) requires that member states ensure that employed women are entitled
to at least 14 weeks of maternity leave with adequate social assistance funds
or cash benefits of not less than two-thirds of their previous earnings, that
they receive medical benefits during that period, and that they be entitled to
return to the same or an equivalent position at the end of the leave.[251] A non-binding ILO recommendation
urges states to extend maternity leave to at least 18 weeks, to raise cash
benefits to the full amount of previous earnings, and to grant fathers or
mothers parental leave after the expiry of maternity leave.[252]
It also recommends that in countries with adoption regimes, that adoptive
parents be entitled to the same leave and other rights covered by the
convention.[253]

Several international treaties also contain the right to
social security, and authoritative interpretations establish that this right
covers a variety of forms of paid family leave, including leave after
childbirth or adoption. The ICESCR provides in article 9 that states parties to
the covenant “recognize the right of everyone to social security,
including social insurance,” and General Comment No. 19 of the Committee on
Economic, Social and Cultural Rights (CESCR), which monitors implementation of
the ICESCR, describes the nine principal branches of social security as
including maternity leave.[254]
ILO Convention No. 102, the Social Security (Minimum Standards) Convention,
addresses social security for a range of reasons, including for maternity leave
purposes.[255]

Several regional human rights instruments
include similar provisions. For example, the American Declaration of the Rights
and Duties of Man (which is treated as binding on the United States as a member
of the Organization of American States) provides that “all women, during
pregnancy and the nursing period, and all children have the right to special
protection, care and aid.”[256]
The Additional Protocol to the American Convention on Human Rights in the Area
of Economic, Social and Cultural Rights (the Protocol of San Salvador), which
the US has not ratified, states that the right to social security shall cover
“paid maternity leave before and after childbirth.”[257]
Under African regional human rights law, countries have committed to
“guarantee adequate and paid pre and post-natal maternity leave in both
the private and public sector.”[258]

European law also has strong provisions on paid maternity,
paternity, and parental leave. The Council of Europe’s European Social
Charter requires member states “to provide either by paid leave, by
adequate social security benefits or by benefits from public funds for employed
women to take leave before and after childbirth up to a total of at least fourteen
weeks” and includes provisions on job protection during pregnancy and
leave. It also requires states “to provide that mothers who are nursing
their infants shall be entitled to sufficient time off for this purpose.”[259]In the European Union, Council Directive 92/85/EEC requires EU
member states to offer at least 14 weeks of maternity leave with
“maintenance of payment” or an “adequate allowance.”[260]
In addition, Council Directive 2010/18/EU requires member states to grant
parental leave of at least four months with job protections, and to make one of
the four months non-transferable between parents.[261]

Rights to
Non-discrimination and Equality

Many human rights treaties require that countries eliminate
discrimination on the basis of certain prohibited grounds, and require equal
protection of the law. Some treaties and international instruments include
specific provisions on non-discrimination against workers with family
responsibilities, and promote non-discrimination (often phrased as
“parity”) for part-time workers.

The International Covenant on Civil and Political Rights
(ICCPR), which the US has ratified, requires that states guarantee all persons
equal and effective protection from discrimination.[262]
It also provides that all persons are equal before the law and are entitled to
equal protection of the law without discrimination.[263]
The UN Human Rights Committee (HRC), which monitors implementation of the
ICCPR, has explained that this applies to laws generally, not just laws
relating to specific ICCPR provisions, and applies to discrimination in law or
in fact in fields regulated by public authorities.[264]
The HRC has made clear that sexual orientation is a status protected against
discrimination under the ICCPR.

Several treaties
addressing non-discrimination between men and women specifically address the
need for work-family supports and measures to combat women’s disadvantage
in the workplace, including with respect to remuneration and promotions. For
example, CEDAW requires that states take appropriate measures to eliminate
discrimination against women in the field of employment and to guarantee
“the right to equal remuneration, including benefits, and to equal
treatment in respect of work of equal value.”[265]
The ICESCR requires “equal remuneration for work of equal value without
distinction of any kind, in particular women being guaranteed conditions of
work not inferior to those enjoyed by men, with equal pay for equal work”
and “equal opportunity for everyone to be promoted in his employment to
an appropriate higher level.”[266] The ILO Discrimination
(Employment and Occupation) Convention, as well as other ILO conventions, also
prohibits sex discrimination in employment.[267]

The right to be free from discrimination on the basis of
family responsibilities also appears in international and regional treaties.
ILO Convention No. 156, the Workers with Family Responsibilities Convention,
requires national policies to enable workers with family responsibilities to
work without being subject to discrimination and, to the extent possible,
without conflict between their employment and family responsibilities. The
convention calls for measures to take the needs of workers with family
responsibilities into account in terms and conditions of employment and social
security.[268]
An ILO recommendation states that either parent should have the possibility,
within a period immediately following maternity leave, of obtaining a leave
without relinquishing employment and with employment rights being safeguarded
and social security benefits being available.[269]
The European Social Charter also contains a provision on the rights of workers
with family responsibilities, which requires that states “provide a
possibility for either parent to obtain, during a period after maternity leave,
parental leave to take care of a child” and to ensure that family
responsibilities are not a valid reason for termination of employment.[270]

Rights to non-discrimination for part-time workers,
establishing that part-time workers should receive equivalent conditions
(including for work-family supports) to full-time workers proportional to hours
of work or earnings, are set out in ILO instruments and European Union
directives. ILO Convention No. 175, the Convention Concerning Part-Time Work,
requires that member states take measures to ensure that part-time workers
receive conditions equivalent to full-time workers with respect to maternity
protection and social security, proportional to hours of work or earnings.[271]
ILO Recommendation No. 165 calls for part-time workers to have terms and
conditions of employment equivalent to those of full-time workers to the extent
possible.[272]
The European Union requires that member states ensure that part-time workers
are not subject to discrimination with respect to work conditions under the
Framework Agreement on Part-Time Work in Council Directive 97/81/EC (1997) and
under the EU directive on parental leave.[273]

Related Rights

International treaties contain additional rights that are
relevant to minimizing work-family conflict. For example, CEDAW calls for
social services to enable parents to combine family obligations with work
responsibilities and participation in public life, and establishes a right to
protection of health and safety in working conditions, including “safeguarding
the function of reproduction.”[274] The ILO
recommendation on workers with family responsibilities calls on countries to
promote flexible work schedule arrangements[275] and to generally
promote measures to lighten the burdens of workers with family responsibilities.[276]

The right to health is also at issue given the ways that
short or unpaid leave and inflexible workplaces can contribute to poor health.
Treaties including the ICESCR, CEDAW, and the Convention on the Rights of the
Child (CRC)[277]
set forth a right to the highest attainable standard of health.[278]
The CRC specifically mentions the importance of breastfeeding in relation to
the right to health,[279]
and the ILO maternity protection convention establishes minimum protections for
breaks to support breastfeeding.[280]
Moreover, in a review of one country’s compliance with the ICESCR, the
Committee on Economic, Social and Cultural Rights said that a bill to reduce
subsidized leave from work for parents to care for ill children constituted a
violation of the right to health and was a retrogressive measure affecting the
minimum standards of the right to health.[281]

VI. Recommendations

To the Federal
Government

To the US Department of Labor

Ensure that the 2011 DOL-sponsored national
dialog on workplace flexibility addresses paid family leave, part-time parity,
and flexible work conditions for parents returning from maternity or paternity
leave. Ensure that marginalized and disadvantaged workers actively participate
in the dialog forums, including workers with same-sex partners, part-time
workers, and low-income workers.

Publish data on compliance with the new
legal requirements on employer accommodation of breastfeeding, and promote
awareness of the law among employers and employees.

Amplify outreach to workers and employers to
raise awareness of FMLA rights and obligations, including with respect to the
definition of “son or daughter” as it applies to workers “in
loco parentis” to a child.

To the US Congress

Enact
legislation to guarantee national paid family leave. The legislation should
ideally establish wage replacement for at least the period of leave allowed
under the FMLA, offer sufficient wage replacement to make leave a realistic
possibility for men and women, prohibit discrimination against workers requesting
leave, cover all employees (including those working part time), enable
self-employed individuals to opt in, and include meaningful penalties for
employer non-compliance. Financing should be through a public family leave
insurance mechanism, most likely funded through payroll tax deductions.

In the interim, expand access to unpaid FMLA
leave, including by decreasing the firm size for FMLA coverage and expanding
worker eligibility by lowering the length of tenure and hours-worked
requirements. Also extend eligibility to reflect the care-giving needs of
extended families and families with same-sex partners.

Enact legislation to establish a grant
program to help states provide wage replacement to workers on family leave
through public family leave insurance programs. In the interim, include funds
in the federal budget for the Department of Labor to offer grants to states for
paid leave programs.

Enact the Federal Employees Paid Parental
Leave Act in accordance with aims to have the federal government act as a model
employer.

Amend federal anti-discrimination
legislation to explicitly make it illegal for employers to discriminate on the
basis of family care-giving responsibilities.

Enact other bills that would provide
supports for working families and promote gender equality, including the
Working Families Flexibility Act, the Healthy Families Act, and legislation to
better address the gender wage gap.

The Senate should approve the ratification
of key treaties that include rights to paid family leave and work-family
supports, especially the Convention on the Elimination of All Forms of
Discrimination against Women and the International Covenant on Economic, Social
and Cultural Rights, without harmful reservations.

To the White House

Continue efforts to catalyze state
innovation on paid leave by including the state paid leave grant fund in the FY
2012 and subsequent budgets.

Continue to speak out publicly about the
need for paid family leave, work-family supports, and protections against
discrimination for workers with family responsibilities.

To the Equal Employment Opportunity Commission (EEOC)

Closely monitor and publish data on cases of
discrimination against workers with family responsibilities, and amplify
efforts to inform employers about the ways that discrimination against family
caregivers can violate federal law.

Commission a study on the increasing numbers
of pregnancy discrimination charges. Increase efforts to enforce the Pregnancy
Discrimination Act and sanction violators. Amplify efforts to raise awareness
among workers and employers about their rights and duties under the Act, and to
assist victims in pursuing discrimination claims.

To State Governments

Enact state paid family leave laws. The
legislation should offer sufficient wage replacement, include job protections
and prohibit discrimination against workers requesting leave, cover all
employees, enable self-employed individuals to opt in, and include meaningful
penalties for employer non-compliance. Financing should be through a public
family leave insurance mechanism, most likely funded through payroll tax
deductions.

Establish multi-sector task forces or other
bodies to study feasible approaches to providing work-family supports,
including paid leave, and provide adequate resources for their work. Include
government representatives, lawmakers from all major political parties,
nongovernmental experts, healthcare professionals, business and labor leaders,
and worker representatives.

In states without such laws, enact
legislation on workplace accommodations for pumping or breastfeeding at work,
in particular to cover the workers not covered by the federal health care
law’s provisions on breastfeeding accommodation.

Enact laws on other work-family supports,
including laws on paid sick days and laws to protect employees requesting
flexible working conditions from retaliation.

Enact or amend state anti-discrimination
laws to explicitly prohibit discrimination on the basis of family care-giving
responsibilities. State authorities charged with enforcing anti-discrimination
laws should ensure that cases of employment discrimination on the basis of
family care-giving responsibilities are investigated and prosecuted under
existing legal theories.

States with existing paid family leave insurance
programs should increase efforts to raise public awareness about the programs,
and funds should be allocated for outreach. They should also gather data on
access to paid family leave benefits by disadvantaged classes of workers. The
laws establishing the programs should be amended to include job protections for
leave-takers.

State officials and lawmakers should convene
discussions within multi-state policy forums on work-family legislation
options, including on paid leave, flexible work arrangements, and protections
against discrimination on the basis of family responsibilities.

VII. Acknowledgements

This report was researched and authored by Janet Walsh,
deputy director of the Women’s Rights Division of Human Rights Watch. It
was reviewed and edited by Liesl Gerntholtz, executive director of the
Women’s Rights Division, Alison Parker, director of the US Program,
Joseph Amon, director of the Health and Human Rights Program, Boris Dittrich,
acting director of the LGBT Rights Program, Zama Coursen-Neff, deputy director
of the Children’s Rights Division, Clive Baldwin, senior legal advisor,
and Danielle Haas, Program Office editor. Vicki Shabo of the National
Partnership for Women and Families, Andrea Paluso of Family Forward Oregon, and
Sherry Leiwant of A Better Balance provided external review of all or portions
of the report.

We are grateful to the individuals who agreed to share their
personal stories, as well as all of the health providers, officials, and
experts who agreed to be interviewed. We thank all of the organizations and
individuals who supported this work, facilitated interviews, and provided
invaluable insight.

The Women’s Rights Division of Human Rights Watch
gratefully acknowledges the financial support of Arcadia, the Moriah Fund, the
Trellis Fund, and other supporters.

Appendix: Country Comparisons of Paid
Leave Benefits

The chart below includes information on paid maternity,
paternity, parental, and other family care-giving leave required under law in
countries that are members of the Organization for Economic Co-Operation and
Development (OECD) and a selection of other countries with relatively high
levels of gross national income.

The sources for the information in this chart were:

the International Labour Organization
Database of Conditions of Work and Employment Laws
(http://www.ilo.org/dyn/travail/travmain.home) (with many entries last updated
in 2009);

The chart does not cover the full array of social benefits
offered to workers with family responsibilities, but rather focuses on paid
leave benefits related to employment, especially for parents of newborn or
adopted children. It does not include information on additional unpaid leave
entitlements. There were discrepancies among these sources; the chart reflects
what appeared to be the most current information. The leave schemes for all
countries have many variations or complexities beyond what was feasible to
describe in this chart (e.g., minimum and maximum benefits, additional benefits
for multiple or premature births, variations for adoption leave, rules related
to transferability of portions of parental leave, extended leave in case of
disability, variations for single parents, differential benefits for high
income workers, and additional benefits through collective bargaining agreements).
Currency conversion rates are as of January 25, 2011.

*Leave
for bereavement, marriage, and other events; amount of leave depends on
event.

Australia

-

-

-

-

Fixed
amount*

18
weeks**

-

-

General
taxation

*Paid
at the level of the national minimum wage.

**If
the primary caregiver returns to work before the expiry of this period, they
can transfer the unused paid leave to their partner.

Austria

100%

16
weeks

-

-

Variable*

2
years

-

-

Statutory
health insurance/ general taxation / employer contributions

*
Parents can choose between flat rate options or an income-related option.

Bangladesh

100%

16
weeks

-

-

-

-

-

-

Employer

Belgium

75%*

15
weeks

100%**

10
days

Fixed
amount***

12
weeks****

Fixed
amount*****

1
year (time credit system)

Federal
health insurance, general taxation, and employee and employer contributions

*82%
for first 30 days, then 75%

**100%
for 3 days then 82%

***Approx.
EUR 653 (US $892) per month net of taxes

****To
be extended to 4 months by end 2011

*****Approx.
EUR 592 (US $809)per month

Brazil

100%

17
weeks*

100%

5
days

-

-

-

-

Social
security and employer**

*Employer
can extend for another 12 weeks

**
Employer is reimbursed, except for the extended weeks, which are tax
deductable. Employer pays for paternity leave.

Canada

55%

15-18
weeks*

-

-

55%

37
weeks

100%

3
days**

Employer
and federal and state employment insurance program

*
Varies by province.

**Leave
for bereavement

Chile

100%

18
weeks

100%

5
days

-

-

100%

3-7
days*

Social
security

*Leave
for bereavement

China

100%

13
weeks

-

-

-

-

100%

1-3
days*

Social
security

*Leave
for marriage or bereavement

Colombia

100%

12
weeks

100%

4-8
days

-

-

-

-

Social
security

Czech Republic

60%

28
weeks

-

-

Variable*

3
years

-

-

Social
security/

health
insurance/ general taxation

*Fixed
amounts that vary according to length of leave

Denmark

100%

18
weeks

100%

2
weeks

100%

32
weeks*

-

-

Sickness
benefit scheme/

employers
and municipalities through pooled leave funds

*The
leave period may be extended if the worker returns to work part-time, and the
payment is then spread over the longer period. In certain sectors, fathers
are entitled to additional non-transferable leave.

Egypt

100%

12
weeks

-

-

-

-

-

-

Social
security / employer

Estonia

100%

20
weeks

-

-

Variable*

3
years

80%

14
days**

Social
security/ general taxation

*Flat
rate for 3 years or 100% of earnings for 62 weeks

**Leave
for care of sick child

Ethiopia

100%

13
weeks

-

-

-

-

-

-

Employer

-

Maternity Leave

Paternity Leave

Parental Leave

Additional Family Leave

Funding Sources

Comments

-

Pay

Duration

Pay

Duration

Pay

Duration

Pay

Duration

Finland

Variable*

21 weeks

70%

3-6 weeks

Variable**

158 working
days

Variable***

3 years****

Health
insurance / municipal taxes

*90%
for first 56 days, then 70%

**
75% for first 30 days, then 30%

***Depends
on number of children

****Home
care leave

France

100%

16 weeks

100%

2 weeks

Variable*

3 years

Variable**

3 years

Social
security / health insurance / family allowance fund

* Entitled
to leave or to work part time until the child is 3 years old. Varying
flat-rate payments depending on size of family and leave circumstances.

**Leave to
care for seriously ill or disabled family member. Amount of pay depends on
length of employment and family circumstances.

Germany

100%

14 weeks

-

-

67%*

12-14
months**

80%

10 days***

General
taxation/ statutory health insurance / employer****

*If spread
over 28 months, half of this amount is paid per month.

** A mother
or father can receive parental leave pay for up to 12 months. An additional
two months of pay is available if the other partner takes leave. May be taken
over longer period with lesser pay.

***Leave
for care of an ill child

****Depends
on the amount to be paid while on leave and whether the worker is eligible to
receive statutory health insurance.

Greece

100%

17 weeks*

100%

2 days

-

-

100%

3.75
months**

Social
security and other government sources/ employer funding of paternity leave

*An
additional 6 months of paid leave is available with minimum wage pay after
maternity leave. Public sector maternity leave is longer.

**Through
flexible working scheme. Longer leave available in public sector.

*60
days for mother, 60 days for father, and rest is a family entitlement.

**Leave
to care for an ill child

Switzerland

80%

14
weeks

-

-

-

-

-

-

Social
insurance

Turkey

66.6%

16
weeks

-

-

-

-

-

-

Social
security

United Arab Emirates

50%
/ 100%*

45
days

-

-

-

-

-

-

Employer

*100%
after one year of continuous employment

United Kingdom

90%/
Fixed amount*

52
weeks

Variable**

2/26
weeks***

-

-

-

-

Employer****

*
90% for 6 weeks and then 124.88 GBP/week or 90% of weekly earnings, whichever
is less.

**Two
weeks paid at a rate adjusted according to weekly earnings. Father receives
124.88 GBP (US $197)/week or 90% of weekly earnings, whichever is less, if
caring for the child during maternity leave not taken by mother.

***Up
to 26 weeks to care for the child if the mother returns to work within the
first year without using all of her maternity leave.

[2]
Heather Boushey, “The New Breadwinners,” in Maria Shriver and the
Center for American Progress, The Shriver Report: A Woman’s Nation
Changes Everything (Washington, DC: Center for American Progress, October
2009), p. 33.

[6]
Heather Boushey, Jessica Arons, and Lauren Smith, “Families Can’t
Afford the Gender Wage Gap,” Center for American Progress, April 2010, p.
2; Joan Williams and Heather Boushey, “The Three Faces of Work-Family
Conflict: The Poor, the Professionals, and the Missing Middle,” Center
for American Progress and WorkLife Law, January 2010, p.4.

[7]
National Alliance for Caregiving and AARP, “Caregiving in the U.S.
2009,” November 2009, p. 4. The study defined caregivers as those who
provide unpaid care to an adult or to a child with special needs.

[8]
David Cantor, et al., “Balancing the Needs of Families and Employers:
Family and Medical Leave Surveys,” Department of Labor (DOL), 2000, http://www.dol.gov/asp/archive/reports/fmla/toc.htm
(accessed October 27, 2010), section 2.1.3. The DOL will be updating the FMLA
surveys in 2011.

[10]
Economists use “regression-adjusted” estimates of pay to analyze
the gender wage gap, controlling for measurable productivity-related
characteristics of workers. Economists Francine Blau and Lawrence Kahn found
that educational attainment levels lowered the discrepancy in pay between men
and women, and that other productivity-related factors, such as experience,
occupation, and industry widened the gap. They found that 27.4 percent of the
gender pay gap can be explained by differences in occupations, 21.9 percent can
be explained by industry, and 10.5 percent can be explained by labor force
experience. In total, 59.8 percent of gender pay inequity can be explained by
these factors, leaving 41.1 percent of the pay gap as not explainable by
anything that can be measured. Testimony of Heather Boushey, Senior Economist,
Center for American Progress Action Fund, before the U.S. Senate, Committee on
Health, Education, Labor, and Pensions, “Strengthening the Middle Class:
Ensuring Equal Pay for Women,” March 11, 2010, http://www.americanprogressaction.org/issues/2010/03/pdf/Boushey_testimony.pdf
(accessed December 10, 2010).

[11]
Michelle Budig, Testimony before the US Congressional Joint Economic Committee,
“New Evidence on the Gender Pay Gap for Women and Mothers in
Management,” September 28, 2010, p. 4.

[22]
IWPR, “Majority of Voters Support Workplace Flexibility, Job Quality, and
Family Support Policies,” October 29, 2010, http://www.iwpr.org/pdf/PressReleaseRock_WorkFam_28Oct2010.pdf
(accessed November 15, 2010). Women and parents with children under 18 voiced
even stronger support for work-family support policies across the board.

[25]
Sarah Fass, “Paid Family Leave in the States: A Critical Support for
Low-Wage Workers and Their Families,” National Center for Children in
Poverty, Mailman School of Public Health, Columbia University, March 2009, p.
5.

[26]
DOL, “Administrator’s Interpretation No. 2010-3,” June 22, http://www.dol.gov/whd/opinion/adminIntrprtn/FMLA/2010/
FMLAAI2010_3.pdf (accessed October 19, 2010) (stating:
“day-to-day care or financial support may establish an in loco parentis
relationship where the employee intends to assume the responsibilities of a
parent with regard to a child.” See also DOL, “Fact Sheet # 28: The
Family and Medical Leave Act of 1993,” February 2010, http://www.dol.gov/whd/regs/compliance/whdfs28.htm
(accessed October 19, 2010).

[27]
Ellen Galinsky, James Bond, and Kelly Sakai, “2008 National Study of
Employers,” Family and Work Institute, 2008, p. 6. The FMLA includes
enforcement measures, including civil actions by employees for damages or
equitable relief and administrative or civil actions by the Secretary of Labor,
for companies failing to comply with the law. FMLA, section 2617.

[29]
WorkLife Law, a leading academic center on workplace discrimination, defines
“family responsibilities discrimination” as discrimination against
workers who have family caregiving responsibilities, such as pregnant women,
mothers and fathers of young children, parents of disabled children, and
workers who care for their aging parents or sick spouses and partners. A
factsheet on this form of discrimination is available from the center at http://www.worklifelaw.org/FactSheet.html (accessed
January 10, 2011).

[32]
No law prohibits such retaliation. One narrow law covering only federal
employees authorizes scheduling flexibility programs, including
compressed schedules, but does not require them. Federal Employees Flexible and
Compressed Work Schedules Act of 1982, 5 U.S.C. § 6120.

[37]
Federal Employees Paid Parental Leave Act, H.R. 626 and S. 354, introduced in
the Senate on January 29, 2009 and passed by the House of Representatives on
June 4, 2009. Sponsored by Rep. Carolyn Maloney and Sen. Jim Webb.

[41]
Paycheck Fairness Act, S. 182, introduced January 8, 2009, and H.R. 12, introduced
January 6, 2009 and passed in the House on January 9, 2009. The bill failed to
pass the Senate by two votes on November 17, 2010. Sponsored by Sen. Hillary
Clinton and Rep. Rosa DeLauro.

[42]
For example, in October 2010, President Obama issued a statement on National
Work and Family Month, stating in part, “There are steps we can all take
to help – implementing practices like telework, paid leave, and
alternative work schedules – and my Administration is committed to doing
its part to help advance these practices across the country.” See
“Statement of the President on National Work and Family Month,”
October 25, 2010, http://www.whitehouse.gov/the-press-office/2010/10/25/statement-president-national-work-and-family-month
(accessed December 6, 2010).

[45]
Washington State did not have a pre-existing temporary disability insurance
system, so the state has the additional challenge of setting up the
administrative infrastructure to manage paid leave. Once operational, workers
will be entitled to five weeks of paid leave to spend time with a newborn or
newly adopted child. Employees who work at least 35 hours per week will receive
$250 per week, and part-time workers will be eligible for pro-rated benefits.

[62]
For an overview of costs and benefits of a range of work-family policies in
other countries, see Janet Gornick and Ariane Hegewisch, “The Impact of
‘Family-Friendly Policies’ on Women’s Employment Outcomes and
on the Costs and Benefits of Doing Business,” Commissioned Report for the
World Bank, forthcoming 2011. Manuscript on file with Human Rights Watch.

[63]
Lisa Bell and Sandra Newman, “Paid Family & Medical Leave: Why We
Need It, How We Can Get It,” Policy Brief, Family Caregiver Alliance,
September 2003, p. 4.

[64] Jennifer Glass and Lisa Riley,
“Family Responsive Policies and Employee Retention Following
Childbirth,” Social Forces, vol. 76(4), June 1998, p. 1426. The
study also found that job retention was impacted by the ability to avoid
mandatory overtime, supervisor and coworker support, and other factors.

[66]
When California enacted its paid family leave law in 2002, one estimate
projected that employers would save up to $89 million a year in turnover costs
alone. Arindrajit Dube and Ethan Kaplan, “Paid Family Leave in
California: An Analysis of Costs and Benefits,” June 19, 2002, http://www.paidfamilyleave.org/pdf/dube.pdf
(accessed November 17, 2010), p.5.

[73]
For example, the 2008 National Study of Employers by the Families and Work
Institute found that larger companies were significantly more likely to offer
some pay during maternity leave than small employers. Galinsky, Bond, and
Sakai, “2008 National Study of Employers,” p. 19.

[80]DOL,
BLS, National Compensation Survey, Table 32. Among those earning the highest 25
percent of average wages, 17 percent have paid family leave, compared to 5
percent of those earning the lowest 25 percent of average wages.

[81]
Ibid. Among those earning the highest 10 percent of average wages, 18 percent
have paid family leave, compared to 3 percent of those earning the lowest 10
percent of average wages.

[90] Galinsky, Bond, and Sakai,
“2008 National Study of Employers,” p. 19. Similarly, US Census
Bureau data indicate that in the years 2001 to 2003, just 49 percent of workers
who took maternity leave received some paid leave benefits. US Census Bureau,
“Maternity Leave and Employment Patterns of First-Time Mothers:
1961-2003,” February 2008, p. 18.

[93]
Comparative information on other types of work-supports (such as paid sick
days, flexible scheduling, and breastfeeding accommodations) is available from
other sources, including publications and databases of the International Labour
Organization (ILO) and the Organization for Economic Co-Operation and
Development, and from studies by academic experts and work-family advocates.
See, e.g., Jody Heymann and Alison Earle, Raising the Global Floor:
Dismantling the Myth That We Can’t Afford Good Working Conditions for
Everyone (Stanford: Stanford University Press, 2010); Gornick and Meyers, Families
that Work; Arianne Hegewisch and Janet Gornick, “Statutory Routes to
Workplace Flexibility in Cross-National Perspective,” IWPR, 2008; and Gornick
and Hegewisch, “The Impact of ‘Family-Friendly Policies’ on
Women’s Employment Outcomes and on the Costs and Benefits of Doing
Business.”

[96]
Gornick and Meyers, Families that Work, p. 37. The other core welfare
policies included health and sickness benefits; family allowances; workers
compensation; pensions for old age, disability, and survivors; and unemployment
compensation.

[100]
ILO, Maternity at Work: A Review of National Legislation (Geneva:
International Labour Office, 2010), p. 17. By the ILO’s count, the five
countries not offering paid maternity leave were Australia, Lesotho, Papua New
Guinea, Swaziland, and the United States. This differs from the Heymann and
Earle study by including Lesotho. This appears to be out of date, as Heymann
and Earle received notification that Lesotho offers two weeks of paid maternity
leave. Email communication from Jody Heymann to Human Rights Watch, October 30,
2010.

[102]
Heymann and Earle, Raising the Global Floor, p. 63. The study assessed
the competitiveness rankings assigned by the World Economic Forum (WEF) between
1999 and 2008. The WEF publishes rankings of country competitiveness in its
annual Global Competitiveness Report. The rankings are based on a comprehensive
index that captures microeconomic and macroeconomic foundations of national
competitiveness, and the WEF defines competitiveness as the set of
institutions, policies, and factors that determine the level of productivity of
a country.

[113]Michelle J. Budig, Joya Misra, and Irene
Boeckmann, “The
Cross-National Effects of Work-Family Policies on the Motherhood Wage Penalty:
Findings from Multilevel Analyses,” unpublished manuscript, on file with
Human Rights Watch, p. 27. Budig and Misra are sociology professors and
Boeckmann is a graduate student at the University of Massachusetts-Amherst.

[114]
See Gornick and Hegewisch, “The Impact of ‘Family-Friendly
Policies’ on Women’s Employment Outcomes and on the Costs and
Benefits of Doing Business,” p. 11.

[116]
Ibid., p. ix and 20. For this calculation, the ILO was using a sub-set of 152
of the total countries studied, excluding 15 others due to ambiguity about
their leave policy or because they were not in full compliance with the
standards of the ILO maternity protection convention.

[136]
Postpartum depression is a serious mental health problem characterized by a
prolonged period of emotional disturbance, occurring at a time of major life
change and increased responsibilities in the care of a newborn infant. According
to the American Psychological Association (APA), an estimated 9 to 16 percent
of postpartum women experience postpartum depression. APA, “Postpartum
Depression,” undated, http://www.apa.org/pi/women/programs/depression/postpartum.aspx
(accessed November 12, 2010).

[141] Postpartum psychosis is a term that
covers a group of mental illnesses with the sudden onset of psychotic symptoms
following childbirth. It is closely linked with manic depressive (bipolar)
disorder.

[164] For references to various studies,
see Jody Heymann, Sara Toomey, and Frank Furstenberg, “Working Parents:
What Factors Are Involved in Their Ability to Take Time Off From Work When
Their Children Are Sick?” Archives of Pediatrics & Adolescent
Medicine, vol. 163, no. 8, August 1999, footnotes 4 through 25, and Sarah
J. Palmer, “Care of Sick Children By Parents: A Meaningful Role,” Journal
of Advanced Nursing, vol. 18, 1993, p. 188; R. Taylor and P. O’Connor,
“Resident Parents and Shorter Hospital Stay,” Archives of
Disease in Childhood, vol. 64, 1989.

[182]
Centers for Disease Control, “Three Out of Four New Moms Initiate
Breastfeeding; However, Only 43 Percent of Babies Still Being Breastfed at Six
Months of Age,” Press Release, September 14, 2010, http://www.cdc.gov/media/pressrel/2010/r100913.htm
(accessed September 23, 2010).

[248]
Convention on the Elimination of All Forms of Discrimination against Women
(CEDAW), adopted December 18, 1979, G.A. res. 34/180, 34 U.N. GAOR Supp. (No.
46) at 193, U.N. Doc. A/34/46, entered into force September 3, 1981. The US
signed CEDAW in 1980 but has not ratified.

[249]
International Covenant on Economic, Social and Cultural Rights (ICESCR),
adopted December 16, 1966, G.A. Res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16)
at 49, U.N. Doc. A/6316 (1966), 993 U.N.T.S. 3, entered into force January 3,
1976. The US signed the ICESCR in 1977 but has not ratified.

[256]American Declaration of the Rights and Duties of Man, adopted
by the Ninth International Conference of American States (1948), reprinted in
Basic Documents Pertaining to Human Rights in the Inter-American System,
OEA/Ser.L.V/II.82 doc.6 rev.1 at 17 (1992), art. VII.

[257]
Additional Protocol to the American Convention on Human Rights in the Area of
Economic, Social and Cultural Rights, O.A.S. Treaty Series No. 69 (1988),
signed November 17, 1988, art. 9(2).

[258]
Protocol to the African Charter on Human and Peoples’ Rights on the
Rights of Women in Africa, adopted by the 2nd Ordinary Session of the Assembly
of the Union, Maputo, September 13, 2000, CAB/LEG/66.6, entered into force
November 25, 2005, art. 13(i).

[260]
Council Directive 92/85/EEC of 19 October 1992 on the introduction of measures
to encourage improvements in the safety and health at work of pregnant workers
and workers who have recently given birth or are breastfeeding, paras. 8 and
11(2)(b). As of 2010, self-employed workers are also entitled to maternity
leave benefits. See “New EU Law: Self-Employed Workers Obtain Maternity
Leave Right,” EUbusiness, June 7, 2010, http://www.eubusiness.com/news-eu/self-employed-benefits.706/
(accessed October 22, 2010). A proposal to expand paid leave
benefits to 20 weeks and amend this directive won the approval of the European
Parliament in October 2010, but was rejected by EU member states. However,
discussions on an extension to 18 weeks of paid leave are expected in 2011. “EU ministersreject 20-week maternity leave plan,” BBC
News, December 7, 2010, http://www.bbc.co.uk/news/world-europe-11936218
(accessed December 10, 2010).

[267]
ILO Convention No. 111 concerning Discrimination in Respect to Employment and
Occupation, adopted June 25, 1958, 362 U.N.T.S. 31, entered into force June 15,
1960. The US has not ratified these conventions, but as a member of the
International Labour Organization, it has a duty under the ILO Declaration on Fundamental
Principles and Rights at Work to respect, promote, and realize the fundamental
right to the elimination of discrimination in respect of employment and
occupation. The ILO Declaration states that “all Members, even if they
have not ratified the Conventions in question, have an obligation arising from
the very fact of membership in the Organization to respect, to promote and to
realize, in good faith and in accordance with the [ILO] Constitution, the
principles concerning the fundamental rights which are the subject of those
conventions.” International Labour Conference, ILO Declaration on
Fundamental Principles and Rights at Work, 86th Session, Geneva,
June 18, 1998.

[268]
ILO Convention No. 156 concerning Workers with Family Responsibilities, adopted
June 23, 1981, arts. 3 and 4. The convention covers men and women workers with
responsibilities in relation to their dependent children, and in relation to
other members of their immediate family who clearly need their care or support,
where such responsibilities restrict their possibilities of preparing for,
entering, participating in, or advancing in economic activity. Ibid., art.
1(1)-(2).